UNIVERSITY  OF  CALIFORNIA 
AT  LOS  ANGELES 


ni 


ON  tot  Angeles,  Cal. 


CIVIL    LIBERTY 


SELF-GOVERNMENT. 


BY 

FRANCIS   LIEBER,  LL.D., 

CORRESPONDING    MEMBER    OF   THE    INSTITUTE   OF   FRANCE,  ETC.; 

AUTHOR  OF    "POLITICAL   ETHICS,"  "  PRINCIPLES  OF   LEGAL  AND  POLITICAL    INTERPRETATION, 

ETC.,  ETC. 


THIRD     EDITION,     REVISED. 


EDITED   BY  THEODORE   D.  WOOLSEY, 


PHILADELPHIA: 

J.   B.   LIPPINCOTT  &  CO. 

LONDON: 

IC  SOUTHAMPTON  STREET,  COVENT  GARDEN. 

18  83. 


f  ^^ 


Entered,  according  to  Act  of  Congress,  in  the  year  1874,  by 

MATILDA    LIEBER, 
In  the  Office  of  the  Librarian  of  Congress  at  Washington. 


^ 


TO 

HIS    FORMER    PUPILS 

THIS    VOLUME 

IS 
INSCRIBED 

IN    KIND    REMEMBRANCE 

BY  THE  AUTHOR. 


INTRODUCTION 


THE    THIRD    EDITION. 


The  first  edition  of  "  Civil  Liberty  and  Self-Government" 
was  published  in  1853,  when  Dr.  Lieber  was  a  professor  in 
the  University  of  South  Carolina ;  the  second,  enlarged  by 
notes  and  corrected,  appeared  in  1859,  ^"^^  years  after  he  had 
accepted  a  chair  in  Columbia  College,  New  York.  The  second 
edition  was  exhausted  when  he  died,  October  2,  1872;  and  if 
he  had  lived,  he  would,  I  think,  have  prepared  a  third  edition, 
for  the  work  had  come  pretty  extensively  into  the  hands  both 
of  college  students  and  of  mature  men  of  literary  culture.  But 
the  last  years  of  Dr.  Lieber's  life,  after  the  war,  with  the  duties 
and  studies  which  it  laid  upon  him,  was  over,  were  occupied 
with  other  literary  work.  And  so  there  has  been  for  some 
time  an  important  gap  in  the  works  which  can  be  recom- 
mended to  the  student  of  political  science.  The  author  of 
this  preface  was  requested  by  the  family  of  Dr.  Lieber  to 
undertake  the  office  of  preparing  both  the  "  Civil  Liberty  and 
Self-Government,"  and  the  "  Political  Ethics,"  for  a  new  edi- 
tion. The  former,  as  being  most  in  demand,  it  was  thought 
best  to  get  in  readiness  for  the  press  first;  the  other,  it  is 
probable,  will  be  given  to  the  public  after  no  very  long 
interval. 

The  writer  of  these  lines  had  long  been  familiar  with  this 
work.  Soon  after  its  appearance,  he  wrote  a  somewhat  extended 
review  of  it,  in  which  he  spoke  with  plainness,  perhaps  with 
undue  emphasis,  of  certain  minor  inaccuracies    in   the   first 

5 


6  INTRODUCTION  TO    THE   THIRD  EDITION. 

edition,  which  had  escaped  its  author's  notice.  But  the  review 
was  the  means  of  bringing  him  into  acquaintance,  and  after- 
wards into  friendly  relations,  with  Dr.  Lieber :  perceiving  the 
merits  of  the  work,  and  its  suitableness  for  the  wants  of  young 
men  in  the  United  States,  he  was  the  first,  or  among  the  first, 
to  recommend  it  to  students,  so  that  as  early  as  1854  or  1855 
he  put  it  into  the  hands  of  his  pupils  in  Yale  College.  And  he 
has  had  very  good  reason  to  believe  that  the  general  effect  of 
the  work  upon  young  men  has  been  of  the  most  salutary  kind. 

The  work  now  appears  in  all  important  particulars  as  the 
author  left  it.  A  few  slight  corrections  have  been  silently 
introduced  into  the  text;  the  notes  have  received  additions 
where  explanations  of  the  text  seemed  to  be  required,  and 
where  the  progress  of  events  threw  light  on  the  author's  views. 
One  or  two  notes  are  put  in  the  place  of  notes  in  the  last 
edition,  for  special  reasons,  which  are  indicated  in  the  notes 
themselves.  These  changes  and  additions,  in  all  but  few,  are 
denoted  by  brackets.  On  the  whole,  while  the  work  has  been 
carefully  examined,  the  amount  of  alterations  has  been  very 
small,  and  throughout  nothing  is  obtruded  on  the  author. 

It  would  be  a  grateful  task  to  speak  at  length  here  of  the 
services  which  Dr.  Lieber  rendered  to  political  science  in  this 
country.  But  we  must  refer  our  readers  to  the  charming  sketch 
of  his  life  and  character,  given  by  his  friend  Judge  M.  Russell 
Thayer  in  an  address  before  the  Historical  Society  of  Pennsyl- 
vania. He  was  indeed  the  founder  of  this  science  in  this  country, 
in  so  far  as  by  his  method,  his  fulness  of  historical  illustration, 
his  noble  ethical  feeling,  his  sound  practical  judgment,  which 
Avas  of  the  English  rather  than  of  the  German  type,  he  secured 
readers  among  the  first  men  of  the  land,  influenced  political 
thought  more  than  any  one  of  his  contemporaries  in  the  United 
States,  and  made,  I  think,  a  lasting  impression  on  many 
students  who  were  forming  themselves  for  the  work  of  life. 
Severely  scientific  he  could  not  be  called;  he  was  sometimes  a 
little  verbose,  and  his  abundant  stores  of  knowledge  and  read- 
ing were  poured  profusely  out  on  his  readers ;  but  I  am  not 
sure  that  a  writer  so  full  of  illustration,  so  transparent  in  his 


INTRODUCTION  TO    THE   THIRD  EDITION.  7 

feelings,  and  with  so  little  reserve,  is  not  the  fittest  to  leave  a 
genial  remembrance  and  a  happy  impression  in  the  minds  of 
the  largest  number  of  men. 

Dr.  Lieber's  vicissitudes  of  life  were  of  a  kind  to  cultivate  in 
him  practical  judgment  concerning  political  matters.  Sharing 
in  his  early  youth  in  that  inspiration  of  patriotism  which 
drove  so  many  young  Germans  into  the  field,  and  partaking 
of  the  toils  of  the  Waterloo  campaign,  during  which,  at  the 
battle  of  Namur,  he  was  wounded;  then  returning  to  his 
native  city,  Berlin,  to  fall  under  the  suspicion  of  the  govern- 
ment on  account  of  his  connection  with  the  ardent  patriot 
Jahn ;  next,  after  his  graduation  at  Jena,  making  his  way  into 
Greece,  as  a  volunteer  in  the  cause  of  Greek  independence; 
thereupon,  disappointed  and  destitute,  taking  refuge  in  Italy, 
where  the  historian  Niebuhr  invited  him  to  act  as  tutor  of  his 
son  ;  then  returning  into  Prussia  with  promises  of  protection, 
which  were  fulfilled  by  his  imprisonment,  and  gladly,  on  his 
release,  going  to  London,  where  he  supported  himself  for  a 
year  by  writing  and  teaching,  he  at  length,  in  1827,  found  a 
permanent  domicile  in  the  United  States.  But  here  for  some 
time  he  had  no  fixed  dwelling-place.  From  Boston,  where  he 
stayed  five  years,  he  removed  to  New  York  in  1832,  then  to 
Philadelphia  in  1833,  and  then,  in  1835,  accepted  the  chair  of 
History  and  Political  Economy  in  the  University  of  South 
Carolina.  One  more  transplantation,  from  this  scene  of  his 
professional  as  well  as  literary  labors,  brought  him,  as  we  have 
seen,  to  New  York,  in  1858,  where  he  ended  his  days.  Thus, 
resembling  the  Greek 

"  Qui  multorum  hominum  mores  et  vidit  et  iirbes," 

he  was  enabled  to  add  to  the  treasures  of  history  with  which 
his  education  had  enriched  his  mind,  the  experience  of  a  man 
versed  in  life,  acquainted  with  mankind  under  many  forms  of 
society,  having  the  best  opportunities  to  observe  governments 
and  political  institutions,  and  stimulated  by  intercourse  with  a 
person  like  Barthold  Niebuhr.  It  is  worth  noticing  here  that 
his  life  in  the  United  States  was  almost  equally  diversified  with 


8  INTRODUCTION  TO    THE   THIRD  EDITION. 

his  earlier  life  passed  in  Europe.  Especially  he  had  an  oppor- 
tunity, such  as  few  have  had,  of  seeing  life  in  a  State  where 
slavery  existed,  in  a  State  at  the  very  head  of  Southern  insti- 
tutions, where  a  large  number  of  refined  men,  given  to  politics, 
had  reduced  Southern  principles  to  a  doctrine,  which  they 
sought  to  engraft  on  the  Constitution  of  the  country,  under 
the  guidance  of  so  accomplished  and  deep-thinking  a  states- 
man as  Calhoun. 

Dr.  Lieber's  native  traits  of  mind  seem  to  have  been  such 
that  he  was  able  readily  to  assimilate  the  impressions  which 
a  great  diversity  of  institutions  made  upon  him.  We  are  wont 
to  contrast  the  German  mind,  deep  but  not  clear,  prone  to 
speculation,  unpractical,  with  our  practical,  clear-sighted,  but 
short-sighted  English  mind.  But  Dr.  Lieber,  while  he  had  a 
scientific  " anlage"  had  an  eminently  practical  spirit,  capable 
of  gathering  from  history  and  experience  their  lessons,  and  of 
reconciling  scientific  truth  with  the  demands  and  possibilities 
of  an  existing  state  of  things.  The  science  of  politics  rests  on 
the  idea  of  justice  and  of  rights;  but  the  questions.  What  is  the 
best  possible  state  ?  How  far  can  the  experience  of  one  state 
be  applied  with  advantage  to  another?  What  securities  are 
needed  by  a  nation  against  a  government  ?  and  What  power 
is  needed  by  a  government  for  the  highest  welfare  of  the 
nation  ? — these  and  many  others  are  purely  practical  questions, 
which  must  be  answered  by  the  experience,  the  knowledge, 
the  wisdom  of  thoughtful  men,  or  else  abstractionists  and 
political  revolutionists  will  answer  them  to  a  nation's  ruin. 
Dr.  Lieber  felt  that  English  liberty  had  been  under  a  remark- 
able guidance  of  the  divine  Ruler  of  men  ;  that  justice,  order, 
stability,  freedom,  had  been  reconciled  in  it  in  a  wonderful 
way;  that  its  capacity  of  progress  without  revolution  set  it  up 
as  a  model  and  guide  to  the  nations  ;  while  yet,  everywhere, 
the  best  men  ought  to  judge,  with  all  the  light  and  candor 
possible,  how  far  these  principles  of  the  Anglican  race  could 
be  adopted  and  engrafted  on  other  constitutions.  He  was 
thus  no  German,  except  in  justly  estimating  the  excellent 
traits   of  his  fatherland  :    in  his   political   judgments  he  was 


INTRODUCTION  TO    THE   THIRD   EDITION.  g 

more  of  an  Englishman  or  of  a  republican  than  anything  else. 
We  wonder,  as  we  become  acquainted  with  him  in  the  writings 
of  his  mature  life,  how  there  could  have  been  any  froth  of 
liberty  in  his  youth  which  brought  suspicion  upon  him,  and 
can  only  account  for  the  treatment  he  received  from  the  police 
of  his  native  country  by  that  dread  of  revolution  which  French 
movements  during  a  generation  had  aroused,  and  which,  with 
unnatural  sharpness  of  sight,  saw  in  the  youthful  deliverers  of 
their  country  the  foes  of  kings. 

The  "Civil  Liberty  and  Self-Government"  cannot  be  read 
profitably  without  taking  into  view  the  events  of  1848  and  the 
new  empire  of  Napoleon  III.  Through  the  book  there  is  a 
contrast,  which  often  appears,  between  Anglican  and  Gallican 
liberty,  between  checks  and  guarantees,  institutions  and  dif- 
fused power,  on  the  one  hand,  and  a  government,  on  the  other, 
with  no  checks  and  no  institutions,  with  a  centralized  power 
swallowing  up  all  minor  authority  in  the  great  leviathan,  and 
calling  that  a  government  of  the  people,  because  the  people  gave 
their  consent  to  it  once  and  forever.  Our  author  watched  this 
French  system,  no  doubt,  with  intense  interest,  and  when  he 
saw  the  government  of  lies  and  of  moral  corruption  falling 
under  the  blows  of  a  vigorous  foe,  it  was  not  as  a  Prussian  or 
a  German  that  he  rejpiced  in  it,  but  as  a  man,  a  true  American 
and  a  Christian.  Here  was  the  judgment  of  events,  the  rebuke 
of  God.  If,  together  with  this  high  satisfaction  in  catching 
glimpses  of  a  divine  government,  we  might  attribute  some 
pleasure  to  our  author  when  he  found  that  history  was  con- 
firming his  theory,  that  he  had  almost  prophesied  in  this  book, 
and  that  the  hopes  of  mankind  would  be  the  brighter  for  what 
happened  in  1870,  we  could  not  surely  find  fault  with  him. 

The  value  of  this  work  in  this  country  consists  chiefly  in  its 
corrections  of  some  of  our  prevalent  tendencies.  In  chapter 
xxii.  the  author  remarks  that,  as  it  appears  to  him,  "  while 
the  English  incline  occasionally  too  much  to  the  historical 
element,  we,  in  turn,  incline  occasionally  too  much  toward 
abstraction ;"  and  further,  "that  it  is  certain  that  we  conceive 
of  the  rights  of  the  citizen  more  in  the  abstract,  and  more  as 


10         INTRODUCTION  TO    THE   THIRD  EDITION. 

attributes  of  his  humanity."  Both  of  these  remarks  are  un- 
doubtedly true.  We  are  inexperienced  and  self-confident, 
with  small  historical  knowledge,  and  we  run  into  abstractions 
as  the  easiest  things  for  the  least  educated  to  comprehend,  and 
for  demagogues  to  make  the  starting-point  in  their  projects 
and  deductions.  We  make  little  distinction  practically  be- 
tween personal  and  political  rights,  so  that  the  right  of  suffrage 
seems  to  belong  to  the  human  being  as  such,  although,  incon- 
sistently, we  withhold  it  still  from  women  and  minors.  A  citi- 
zen without  suffrage  is  hardly  conceived  of.  We  are  coming, 
too,  to  believe  in  a  more  liberal  construction  of  the  general 
Constitution,  so  as  to  throw  larger  power  into  the  hands  of 
Congress,  and  to  look  to  the  government  for  help  in  difficulty ; 
and  this  at  the  very  time  when  the  newest  and  wisest  reforms 
in  state  constitutions  are  restricting  legislatures  in  the  sphere 
of  their  functions.  The  tendency  plainly  is  towards  a  more 
centralized  government  by  a  freer  interpretation  of  the  United 
States  Constitution.  The  dangers  which  menace  us  from  this 
tendency,  and  from  what  may  be  called  democratic  abstraction, 
are  met  by  such  a  book  as  this,  which  teaches  that  there  is  no 
safe  liberty  but  one  under  checks  and  guarantees,  one  which 
is  articulated,  one  which  by  institutions  of  local  self-govern- 
ment educates  the  whole  people  and  moderates  the  force  of 
administrations,  one  which  sets  up  the  check  of  state  power 
within  certain  well-defined  limits  against  United  States  power, 
one  which  draws  a  broad  line  between  the  unorganized  masses 
of  men  calling  themselves  the  people  and  the  people  formed 
into  bodies,  "joined  together  and  compacted"  by  constitutions 
and  institutions. 

May  this  book  still  lead  our  young  men  into  the  paths  of 
political  wisdom,  and  may  the  old  guarantees  and  checks,  the 
substance  of  English  liberty,  with  whatever  of  good  we  have 
received  that  is  peculiar  to  the  American  people,  have,  as  years 
roll  on,  more  and  more  of  our  confidence  and  veneration ! 

Theodore  D.  Woolsey. 

New  Haven,  January  28,  1874. 


¥ 


^  CONTENTS. 


CHAPTER   I. 

PAGB 

Introductory  .17 

CHAPTER  11. 
Definitions  of  liberty 23 

CHAPTER  in. 
The  meaning  of  civil  liiserty 37 

CHAPTER   IV. 

Ancient  and   modern  liberty. — Ancient,   medieval,  and  modern 
states 43 

CHAPTER   V. 
Anglican    liberty 51 

CHAPTER   VI. 

National  independence. — Personal  liberty  .        .        .        .56 

CHAPTER   VII. 
-Bail. — Penal  trial 67 

CHAPTER  VIII. 
High  treason 79 

CHAPTER   IX. 

Communion. — Locomotion,  emigration 87 

II 


12  CONTENTS. 

CHAPTER   X. 

PAGB 

'      LlBER,TY   OF   CONSCIENCE. — PROPERTY. — SUPREMACY   OF  THE  LAW  .        97 

CHAPTER    XI. 
Quartering  soldiers. — The  army 113 

CHAPTER  XII. 
Petition. — Association 121 

CHAPTER   XIII. 
Publicity 127 

CHAPTER  XIV. 
Supremacy  of  the  law. — Taxation. — Division  of  power    .        .     143 

'  CHAPTER   XV. 

>i  Responsible    ministers.  —  Courts     declaring     laws     unconstitu- 
tional.— Representative    government 159 

CHAPTER   XVI. 

Representative  government,  continued. — Basis  of  property. — 
Direct  and  indirect  elections 171 

CHAPTER   XVII. 

Parliamentary  law  and  usage. — The  speaker. — Two  houses. — 
The  veto 1S5 

CHAPTER   XVIII. 
Independence  of  the  judiciary. — The  law,  jus,   common   law  .     203 

CHAPTER   XIX. 

Independence  of  jus,  self-development  of  law,  continued. — Ac- 
cusatorial and  inquisitorial  trials. — Independence  of  the 
judge 215 

<  CHAPTER   XX. 

Independence  of  jus,  continued. — Trial  uy  jury. — The  advocate     232 


CONTENTS.  13 

CHAPTER  XXI. 

PAGE 

Self-government 247 

CHAPTER   XX  H, 
American  liberty 256 

CHAPTER    XXIH. 
In  what  civil  liberty  consists,  proved  by  contraries  .        .        .    270 

CHAPTER  XXIV. 
Gallican  liberty. — Spreading  of  liberty 279 

CHAPTER   XXV. 
The  institution. — Its  definition. — Its  power  for  good  and  evil    297 

CHAPTER   XXVI. 

The  institution  continued. — Institutional  liberty. — Institu- 
tional local  self-government 316 

CHAPTER  XXVII. 

Effects  and  uses  of  institutional  self-government      .        .        .    324 

CHAPTER   XXVIII. 
Dangers  and  inconveniences  of  institutional  self-government  .    336 

CHAPTER   XXIX. 
Advantages  of  institutional  government,  farther  considered    .    346 

CHAPTER   XXX. 

Institutional  government  the  only  government  which  prevents 
the  growth  of  too  much  power. — Liberty,  wealth,  and  lon- 
gevity of  states 357 

CHAPTER   XXXI. 

Insecurity  of  uninstitutional  governments. — Unorganized  inar- 
ticulated  popular  power         .        .        . 363 


14  COATENTS. 

CHAPTER   XXXII. 

PASS 

Imperatorial  sovereignty 374 


CHAPTER    XXXIII. 

Imperatorial  sovereignty,  continued. — Its  origin  and  characteb 
examined 3si 


CHAPTER    XXXIV. 
Centralization. — Influence  of  capital  cities 389 

CHAPTER   XXXV. 
Vox  Populi  Vox  Dei 398 


APPENDIX. 


APPENDIX   I. 

A  paper  on  elections,  election  statistics,  AND  general  votes  of 
yes  or  no 413 

APPENDIX   II. 

A   PAPER   ON  THE  ABUSE  OF  THE   PARDONING  POWER       ....      43I 

APPENDIX   III. 

A    PAPER    ON     SUBJECTS     CONNECTED    WITH    THE    INQUISITORIAL    TRIAL 

AND  THE   LAWS   OF   EVIDENCE 45 1 

APPENDIX    IV. 
Magna  charta  of  king  John 458 


ON 

CIVIL  LIBERTY 

AND 

SELF-GOVERNMENT. 


CHAPTER   I. 

INTRODUCTORY. 

We  live  at  a  period  when  it  is  the  duty  of  reflecting  men  to 
ponder  conscientiously  these  important  questions :  In  what 
does  civil  liberty  consist  ?  How  is  it  maintained  ?  What  are 
its  means  of  self-diffusion,  and  under  what  forms  do  its  chief 
dangers  present  themselves  ? 

Our  age,  marked  by  restless  activity  in  almost  all  depart- 
ments of  knowledge,  and  by  struggles  and  aspirations  before 
unknown,  is  stamped  by  no  characteristic  more  deeply  than 
by  a  desire  to  establish  or  extend  freedom  in  the  political 
societies  of  mankind.  At  no  previous  period,  ancient  or 
modern,  has  this  impulse  been  felt  at  once  so  strongly  and  by 
such  extensive  numbers.  The  love  of  civil  liberty  is  so  lead- 
ing a  motive  in  our  times,  that  no  man  who  does  not  under- 
stand what  civil  liberty  is,  has  acquired  that  self-knowledge 
without  which  we  do  not  know  where  we  stand,  and  are  super- 
numeraries or  instinctive  followers,  rather  than  conscious, 
working  members  of  our  race,  in  our  day  and  generation. 

The  first  half  of  our  century  has  produced  several  hundred 
political  constitutions,  some  few  of  substance  and  sterling 
worth,  many  transient  like  ephemeral  beings,  but  all  of  them 
testifying  to  the  endeavors  of  our  age,  and  plainly  pointing 
out  the  high  problem  that  must  be  solved ;  many  of  them 

2  17 


1 8  ON  CIVIL  LIBERTY 

leaving  roots  in  despite  of  their  short  existence,  which  some 
day  will  sprout  and  prosper.  It  is  in  history  as  in  nature. 
Of  all  the  seeds  that  germinate,  but  few  grow  up  to  be  trees, 
and  of  all  the  millions  of  blossoms,  but  thousands,  or  even 
hundreds,  ripen  into  fruit. 

Changes,  frequently  far  greater  than  are  felt  by  those  who 
stand  in  the  midst  of  them,  have  taken  place;  violent  convul- 
sions have  shaken  large  and  small  countries,  and  blood  haa 
been  shed — that  blood  which  has  always  flowed  before  great 
ideas  could  settle  into  actual  institutions,  or  before  the  yearn- 
ings of  humanity  could  become  realities.  Every  marked 
struggle  in  the  progress  of  civilization  has  its  period  of  con- 
vulsion. Our  race  is  in  that  period  now,  and  thus  our  times 
resemble  the  epoch  of  the  Reformation. 

Many  who  unreservedly  adhere  to  the  past,  or  who  fear  its 
evils  less  than  those  of  change,  resist  the  present  longings  of 
our  kind,  and  seem  to  forget  that  change  is  always  going  on, 
whether  we  will  or  not.  States  consist  of  living  beings,  and 
life  is  change.  Others  seem  to  claim  a  right  of  revolution  for 
governments,  under  the  name  of  coup  d'etat,  but  deny  it  to 
the  people ;  and  large  portions  of  the  people  have  overleaped 
civil  liberty  itself.  They  daringly  disavow  it,  and  pretend  to 
believe  that  they  find  the  solution  of  the  great  problem  of  our 
times  either  in  an  annihilation  of  individuality,  or  in  an  apo- 
theosis of  individual  man,  and  preach  communism,  individual 
sovereignty,  or  the  utmost  concentration  of  all  power  and  po- 
litical action  in  one  Caesar.  "  Parliamentary  libert}/"  is  a  term 
sneeringly  used  in  whole  countries  to  designate  what  they 
consider  an  obsolete  encumbrance  and  decaying  remnants  of 
a  political  phase  belonging  to  the  past.  The  representative 
system  is  laughed  at,  and  the  idol  of  monarchical  or  popular 
absolutism  is  draped  anew,  and  worshipped  by  thousands  as 
if  it  were  the  latest  avatar  of  their  political  god.  What,  but 
a  lustre  or  two  ago,  would  have  been  universally  considered 
impossible,  has  come  to  pass  ;  Rousseau's  hatred  of  representa- 
tive government  is  loudly  and  largely  professed  in  France, 
not  only  by  the  army  and  the  faction  which  holds  power, 


AND  SELF-GOVERNMENT.  ig 

but  also  by  the  French  republican  of  extreme  views,  to  whom 
nothing  is  more  odious  than  decentralized  self-government; 
and  the  two  seem  perfectly  to  agree  with  the  views  lately 
proclaimed  on  an  important  occasion,  that  the  essence  of 
political  civilization  consists  in  universal  suffrage  and  the 
code  Napoleon,  with  which,  and  a  moderately  strong  army,  it 
would  be  easy  to  conquer  Great  Britain.' 

There  are  not  a  few  in  our  own  country  who,  seeing  the 
perversion  of  principles  and  political  corruption,  follow  the 
besetting  fallacy  of  men,  and  seek  salvation  from  one  evil  in 
its  opposite,  as  if  the  means  of  escaping  death  by  fire  were 
freezing  to  death. 

We  must  find  our  way  through  all  these  mazes.  This  is  one 
of  our  duties,  because  it  has  pleased  Providence  to  cast  our 
lot  in  the  middle  of  the  nineteenth  century,  and  because  an 
earnest  man  ought  to  understand,  above  all  other  social 
things,  his  own  times. 

Besides  these  general  considerations,  weighty  as  they  are, 
there  are  others  which  press  more  immediately  upon  ourselves. 
Most  of  us  descend  in  blood,  and  all  of  us  politically,  from 
that  nation  to  which  has  been  assigned,  in  common  with  our- 
selves, the  high  duty  of  developing  modern  civil  liberty,  and 
whose  manliness  and  wisdom,  combined  with  a  certain  his- 
torical good  fortune,  which  enabled  it  to  turn  to  advantage 
elements  that  proved  sources  of  evil  elsewhere,  have  saved  it 
from  the  blight  of  absorbing  centralization.  England  was  the 
earliest  country  to  put  an  end  to  feudal  isolation,  while  still 
retaining  independent  institutions,   and   to   unite   the  estates 


'  These  views  were  laid  before  the  civilized  world  in  a  pamphlet,  published  in 
the  summer  of  1858,  well  known  to  be  countenanced  by  the  ruling  party  in 
France,  and  have  been  frequently  stated  before.  The  code  Napoleon  flatters 
the  vanity  of  the  French  people,  and  not  being  conscious  of  the  fact  that  the 
most  important  element  of  political  civilization  is  civil  liberty,  they  take  this  code 
as  the  sum  of  political  civilization,  while  it  is  peculiarly  obtuse  on  all  matters 
relating  to  political  rights  and  man's  protection  as  a  freeman.  How  could  it  be 
otherwise  with  a  code  which  proceeded  from  the  civil  law,  and  received,  wherever 
it  treats  of  personal  rights,  an  impress  from  a  man  who,  more  perhaps  than  any 
other  person  on  the  stage  of  history,  instinctively  abhorred  everything  inclining 
toward  liberty,  even  the  first  germs  of  freedom  7 


20  ON  CIVIL  LIBERTY 

into  a  powerful  general  parliament,  able  to  protect  the  nation 
against  the  crown.''  There,  too,  centuries  ago,  trials  for  high 
treason  were  surrounded  with  peculiar  safeguards,  besides 
those  known  in  common  criminal  trials,  in  favor  of  the  ac- 
cused, an  exception  the  very  reverse  of  which  we  observe  in 
all  other  European  countries  down  to  the  most  recent  times, 
and  in  most  countries  to  this  day.  In  England  we  first  see 
applied  in  practice,  and  on  a  grand  scale,  the  idea  which  came 
originally  from  the  Netherlands,  that  liberty  must  not  be  a 
boon  of  the  government,  but  that  government  must  derive  its 
rights  from  the  people.  Here,  too,  the  people  always  clung 
to  the  right  to  tax  themselves;  and  here,  from  the  earliest 
times,  the  administration  of  justice  has  been  separated  from 
the  other  functions  of  government,  and  devolved  upon  magis- 
trates set  apart  for  this  end,  a  separation  not  yet  found  in  all 
countries.^  In  England,  power  of  all  kind,  even  of  the  crown, 
has  ever  bowed,  at  least  theoretically,  to  the  supremacy  of  the 
law  ;3  and  that  country  may  claim  the  imperishable  glory  of 


'  The  necessity  of  a  union  of  the  different  courts  and  bodies  of  the  state  waa 
often  perceived  by  those  who  felt  called  upon  to  resent  the  crown,  and  the  cor- 
responding desire  to  defeat  it,  by  the  crown.  An  instance  was  furnished  in 
France  in  1648,  when  Mazarin  strove  to  annul  the  arret  d^jinion. 

=  I  do  not  only  allude  to  such  bodies  as  the  French  parliaments,  but  to  the  fact 
that  down  to  this  century  the  continental  courts  of  justice  conducted,  in  innumer- 
able cases,  what  is  now  frequently  called  the  administrative  business,  such  as 
collecting  taxes,  letting  crown  domains,  superintending  roads  and  bridges.  The 
early  separation  of  tlie  English  judge — I  do  not  speak  of  his  independence, 
yrhich  is  of  much  later  date — and  the  early,  comparatively  speaking,  independent 
position  of  the  English  church,  seem  to  me  two  of  the  most  significant  facts  in 
English  history,  and  answer  in  a  great  measure  the  question  so  often  asked,  Why 
is  it  that  France,  constituted  so  much  like  England  down  to  the  twelfth  or  thir- 
teenth century,  lost  her  liberty,  and  England  not?  It  partially  accounts  for  the 
still  more  surprising  fact  that  the  most  advanced  portions  of  Spain,  at  one  period, 
had  a  clearer  perception  of  liberty  than  England  had,  but  are  now  immeasurably 
behind  her. 

3  Even  a  Henry  VIII.  took  care  to  have  first  the  law  changed  when  it  could 
not  be  bent  to  his  tyrannical  acts.  Despots  in  other  countries  did  not  take  this 
trouble;  and  I  do  not  know  whether  the  history  of  any  other  period  impresses 
the  student  with  that  peculiar  meaning  which  the  English  word  Law  has  ac- 
quired, more  forcibly  than  this  very  reign  of  tyranny  and  royal  bloodshed. 


AND  SELF-GOVERNMENT.  21 

having  formed  a  national  representative  system  of  two  houses, 
governed  by  a  parliamentary  law  of  their  own,  with  that  im- 
portant element,  at  once  conservative  and  progressive,  of  a 
lawful,  loyal  opposition.  It  is  that  country  which  alone  saved 
judicial  and  political  publicity,  when  secrecy  prevailed  every- 
where else ;'  which  retained  a  self-developing  common  law  and 
established  the  trial  by  jury.  In  England,  the  principles  of 
self  government  were  not  swept  away,  and  all  the  chief  prin- 
ciples and  guarantees  of  her  Great  Charter  and  the  Petition 
of  Right  have  passed  over  into  our  constitutions. 

We  belong  to  the  Anglican  race,  which  carries  Anglican 
principles  and  liberty  over  the  globe,  because  wherever  it 
moves,  liberal  institutions  and  a  common  law  full  of  manly 
rights  and  instinct  with  the  principle  of  an  expansive  life,  ac- 
company it.  We  belong  to  that  race  whose  obvious  task  it  is, 
among  other  proud  and  sacred  tasks,  to  rear  and  spread  civil 
liberty  over  vast  regions  in  every  part  of  the  earth,  on  conti- 
nent and  isle.  We  belong  to  that  tribe  which  alone  has  the 
word  Self-Government.  We  belong  to  that  nation  whose 
great  lot  it  is  to  be  placed,  with  the  full  inheritance  of  freedom, 
on  the  freshest  soil  in  the  noblest  site  between  Europe  and 
Asia,  a  nation  young,  whose  kindred  countries,  powerful  in 
wealth,  armies,  and  intellect,  are  old.  It  is  a  period  when  a 
peaceful  migration  of  nations,  similar  in  the  weight  of  numbers 
to  the  warlike  migration  of  the  early  middle  ages,  pours  its 
crowd  into  the  lap  of  our  more  favored  land,  there  to  try,  and 
at  times  to  test  to  the  utmost,  our  institutions — institutions 
which  are  our  foundations  and  buttresses,  as  the  law  which 
they  embody  and  organize  is  our  sole  and  sovereign  master. 

These  are  the  reasons  why  it  is  incumbent  upon  every 
American  again  and  again  to  present  to  his  mind  what  his  own 
liberty  is,  how  he  must  guard  and  maintain  it,  and  why,  if  he 
neglect  it,  he  resembles  the  missionary  that  should  proceed  to 


*  Trials,  especially  criminal  trials,  remained  public  in  several  countries,  for 
instance,  in  the  kingdom  of  Naples ;  but  judicial  aiid  political  publicity  van- 
ished everywhere  except  in  England;  nor  was  the  publicity  of  such  trials  as 
those  of  Naples  of  much  value. 


22  ON  CIVIL  LIBERTY 

conv^ert  the  world  without  Bible  or  prayer-book.  These  are 
the  reasons  why  I  feel  called  upon  to  write  this  work,  in  ad- 
dition to  what  I  have  given  long  ago  in  another  place  on  thq 
subjects  of  Justice,  Law,  the  State,  Government  and  Sover- 
eignty, on  Liberty  and  Right,*  and  to  which,  therefore,  I 
must  refer  my  reader  for  many  preliminary  particulars ;  and 
these,  too,  are  the  reasons  why  I  ask  for  an  attention  corre- 
sponding to  the  sense  of  responsibility  with  which  I  approach 
the  great  theme  of  political  vitality — the  leading  subject  of 
Western  history^  and  the  characteristic  stamp  and  feature  of 
our  race,  our  age,  our  own  country  and  its  calling. 


*  In  my  Political  Ethics. 

*  I  ask  permission  to  draw  the  attention  of  the  scholar  to  a  subject  which 
appears  to  me  important.  I  have  used  the  term  Western  history,  yet  it  is  so 
indistinct  that  I  must  explain  what  is  meant  by  it.  It  ought  not  to  be  so.  I  mean 
by  Western  history  the  history  of  all  historically  active,  non-Asiatic  nations  and 
tribes — the  history  of  the  Europeans  and  their  descendants  in  other  parts  of  the 
world.  In  the  grouping  and  division  of  comprehensive  subjects,  clearness  de- 
pends in  a  great  measure  upon  the  distinctness  of  well-chosen  terms.  Many 
students  of  civilization  have  probably  felt  with  me  the  desirableness  of  a  concise 
term,  which  should  comprehend  within  the  bounds  of  one  word,  capable  of  fur- 
nishing u&  with  an  acceptable  adjective,  the  whole  of  the  Western  Caucasian 
portion  of  mankind — the  Europeans  and  all  their  descendants  in  whatever  part 
of  the  world,  in  America,  Australia,  Africa,  India,  the  Indian  Archipelago  and 
the  Pacific  Islands.  It  is  an  idea  which  constantly  recurs,  and  makes  the  neces- 
sity of  a  proper  and  brief  term  daily  felt.  Bacon  said  that  "  the  wise  question 
is  half  the  science;"  and  may  we  not  add  that  a  wise  division  and  apt  termi- 
nology is  its  completion  ?  In  my  private  papers  I  use  the  term  Occidental  in  a 
sufficiently  natural  contradistinction  to  Oriental.  But  Occidental,  like  Western, 
indicates  geographical  position;  nor  did  I  feel  otherwise  authorized  to  use  it 
here.  Europides  would  not  be  readily  accepted.  Japhethian  would  compre- 
hend more  tribes  than  we  wish  to  designate.  That  some  term  or  other  must 
soon  be  adopted  seems  to  me  clear,  and  I  am  ready  to  accept  any  expressive 
name  formed  in  the  spirit  and  according  to  the  taste  of  our  language.  The 
chemist  and  natural  historian  are  not  the  only  ones  that  stand  in  need  of  distinct 
names  for  their  subjects,  but  they  are  less  exacting  than  scholars.  As  the  whole 
race  is  called  the  Caucasian,  shall  we  designate  the  group  in  question  by  the 
name  of  Cis-Caucasian?  It  is  more  important  for  the  scholar  of  civilization  to 
have  a  distinct  name  for  the  indicated  group,  than  it  was  for  the  student  of  the 
natural  history  of  our  race  to  adopt  the  recently  formed  term  of  prognathous 
tribes,  in  order  to  group  together  all  the  tribes  with  projecting  jaws. 


AND  SELF-GOVERNMENT.  zx 


CHAPTER   II. 

DEFINITIONS    OF    LIBERTY. 

A  DISTINGUISHED  wHtcr  has  said  that  every  one  desires 
liberty,  but  it  is  impossible  to  say  what  it  is.  If  he  meant  by 
liberty,  civil  liberty,  and  that  it  is  impossible  to  give  a  defini- 
tion of  it,  using  the  term  definition  in  its  strictest  sense,  he 
was  right ;  but  he  was  mistaken  if  he  intended  to  say  that 
we  cannot  state  and  explain  what  is  meant  by  civil  liberty  in 
certain  periods,  by  certain  tribes,  and  that  we  cannot  collect 
something  general  from  these  different  views.  Civil  liberty 
does  not  fare  worse  in  this  respect  than  all  other  terms  which 
designate  the  collective  amount  of  different  applications  of  the 
same  principle,  such  as  Fine  Arts,  Religion,  Property,  Re- 
public. The  definitions  of  all  these  terms  imply  the  use  of 
others  variable  in  their  nature.  The  time,  however,  is  passed 
when,  as  in  the  age  of  scholastic  philosophy,  it  was  believed 
that  everything  was  strictly  definable,  and  must  be  compressed 
within  the  narrow  limits  of  an  absolute  definition  before  it 
could  be  entitled  to  the  dignity  of  a  thorough  discussion.  The 
hope  of  being  able  absolutely  to  define  things  that  belong 
either  to  the  commonest  life'  or  the  highest  regions,  betrays  a 
misconception  of  human  language,  which  itself  is  never  abso- 
lute except  in  mathematics.  It  misleads.  Bacon,  so  illus- 
trious as  a  thinker,  has  two  dicta  which  it  will  be  well  for  us  to 
remember  throughout  this  discussion.   He  says:  "Generalities 


•  Is  it  necessary  to  remind  the  reader  of  Dr.  Johnson's  definition  of  the  Knife? 
or  of  the  fact  that  the  greater  portion  of  all  law  business  arises  from  the  impos- 
sibility of  giving  absolute  definitions  for  things  that  are  not  absolute  themselves? 
A  knife  and  a  dagger  are  terms  sufficiently  clear  in  common  life,  but  it  has  been 
found  very  difficult  to  define  them,  in  many  penal  cases,  when  the  law  awards 
different  punishments  for  wounds  inflicted  by  the  one  or  the  other. 


H 


ON  CIVIL   LIBERTY 


are  barren,  and  the  multiplicity  of  single  facts  present  nothing 
but  confusion.  The  middle  principles  alone  are  solid,  orderly, 
and  fruitful;"  and  in  another  part  of  his  immortal  works  he 
states  that  "  civil  knowledge  is  of  all  others  the  most  immersed 
in  matter  and  the  hardliest  reduced  to  axioms."  We  may 
safely  add,  "  and  expressed  in  definitions."  It  would  be 
easy,  indeed,  and  correct,  as  far  as  it  would  go,  to  say :  Civil 
liberty  is  the  idea  of  liberty,  which  is  untrammeled  action, 
applied  to  the  sphere  of  politics ;  but  although  this  definition 
might  be  called  "  orderly,"  it  would  certainly  neither  be 
"  solid"  nor  "  fruitful,"  unless  a  long  discussion  should  follow 
on  what  it  means  in  reality  and  practice. 

This  does  by  no  means,  however,  affect  the  importance  of 
investigating  the  subject  of  civil  liberty  and  of  clearly  pre- 
senting to  our  minds  what  we  mean  by  it,  and  of  what  ele- 
ments it  consists.  Disorders  of  great  public  inconvenience, 
even  bloodshed  and  political  crimes,  have  often  arisen  from  the 
fact  that  the  two  sacred  words,  Liberty  and  People,  were  freely 
and  passionately  used  without  a  clear  and  definite  meaning 
being  attached  to  them.  A  people  that  loves  liberty  can  do 
nothing  better  to  promote  the  object  of  its  love  than  deeply  to 
study  it ;  and  in  order  to  be  able  to  do  this,  it  is  necessary  to 
analyze  it,  and  to  know  the  threads  which  compose  the  valued 
texture. 

In  a  general  way,  it  may  here  be  stated  as  an  explanation — 
not  offered  as  a  definition — that  when  the  term  Civil  Liberty 
is  used,  there  is  now  always  meant  a  high  degree  of  mutually 
guaranteed  protection  against  interference  with  the  interests 
and  rights  held  dear  and  important  by  large  classes  of  civil- 
ized men  or  by  all  the  members  of  a  state,  together  with  an 
effectual  share  in  the  making  and  administration  of  the  laws 
as  the  best  apparatus  to  secure  that  protection,  and  consti- 
tuting the  most  dignified  government  of  men  who  are  conscious 
of  their  rights  and  of  the  destiny  of  humanity.  We  under- 
stand by  civil  liberty  not  only  the  absence  of  individual  re- 
straint, but  liberty  within  the  social  system  and  political  organ- 
ism— a  combination  of  principles  and  laws  which  acknowledge. 


AND  SELF-GOVERNMENT.  2$ 

protect,  and  favor  the  dignity  of  man.  But  what  are  these 
guarantees,  these  interests  and  rights  ?  Who  are  civihzed 
men  ?  In  what  does  that  share  consist  ?  Which  are  the  men 
that  are  conscious  of  their  rights  ?  What  is  the  destiny  of 
humanity?     Who  are  the  large  classes? 

I  mean  by  civil  liberty  that  liberty  which  plainly  results 
from  the  application  of  the  general  idea  of  freedom  to  the  civil 
state  of  man,  that  is,  to  his  relations  as  a  political  being — a 
being  obliged  by  his  nature  and  destined  by  his  Creator  to 
live  in  society.  Civil  liberty  is  the  result  of  man's  twofold 
character,  as  an  individual  and  social  being,  so  soon  as  both 
are  equally  respected. 

All  men  desire  freedom  of  action.  We  have  this  desire,  in 
some  degree,  even  in  common  with  the  animal,  where  it  mani- 
fests itself  at  least  as  a  desire  for  freedom  of  motion.  The 
fiercest  despot  desires  liberty  as  much  as  the  most  ardent  re- 
publican; indeed,  the  difficulty  is  that  he  desires  it  too  much 
— selfishly,  exclusively.'     He  wants  it  for  himself  alone.     He 


'  I  believe  that  this  has  never  been  shown  with  greater  and  more  truculent 
naivetk  than  by  the  present  King  of  Dahomey  in  the  letter  he  wrote  to  the 
Queen  of  England  in  1852.  Every  case  in  which  an  idea,  bad  or  good,  is 
carried  to  a  point  of  extreme  consistency  is  worth  being  noted ;  I  shall  give, 
therefore,  a  part  of  it. 

The  British  government  had  sent  an  anient  to  that  king,  with  presents,  and  the 
direction  to  prevent  him  from  further  trade  in  slaves ;  and  the  king's  answer 
contains  the  following  passage  : — 

"  The  King  of  Dahomey  presents  his  compliments  to  the  Queen  of  England. 
The  presents  which  she  has  sent  him  are  very  acceptable  and  are  good  to  his 
face.  When  Governor  Winiett  visited  the  king,  the  king  told  him  that  he  must 
consult  his  people  before  he  could  give  a  final  answer  about  the  slave-trade.  He 
cannot  see  that  he  and  his  people  can  do  without  it.  It  is  from  the  slave-trade 
that  he  derives  his  principal  revenue.  This  he  has  explained  in  a  long  palaver 
to  Mr.  Cruikshank.  He  begs  the  Queen  of  England  to  put  a  stop  to  the  slave- 
trade  everywhere  else,  and  allow  him  to  continue  it." 

In  another  passage  he  says : — 

"  The  king  begs  the  queen  to  make  a  law  that  no  ships  be  allowed  to  trade  at 
any  place  near  his  domains  lower  down  the  coast  than  Wydah,  as  by  means  of 
trading  vessels  the  people  are  getting  rich  and  resisting  his  authority.  He  hopes 
the  queen  will  send  him  some  good  tower  guns  and  blunderbusses,  and  plenty 
of  them,  to  enable  him  to  make  war"  (which  means  razzias,  m  order  to  carry  off 
captives  for  the  barracu,  or  slave  market). 


26  ON  CIVIL  LIBERTY 

has  not  elevated  himself  to  the  idea  of  granting  to  his  fellows 
the  same  liberty  which  he  claims  for  himself,  and  of  desiring 
to  be  limited  in  his  own  power  of  trenching  on  the  same  liberty 
of  others.  This  is  one  of  the  greatest  ideas  to  which  man  can 
rise.  In  this  mutual  grant  and  check  lies  the  essence  of  civil 
liberty,  as  we  shall  presently  see  more  fully,  and  in  it  lies  its 
dignity.  It  is  a  grave  error  to  suppose  that  the  best  govern- 
ment is  absolutism  with -a  wise  and  noble  despot  at  the  head 
of  the  state.  As  to  consequences  it  is  even  worse  than  abso- 
lutism with  a  tyrant  at  its  head.  The  tyrant  may  lead  to  re- 
flection and  resistance;  the  wisdom  and  brilliancy,  however, 
of  the  government  of  a  great  despot  or  dictator  deceive  and 
unfit  the  people  for  a  better  civil  state.  This  is  at  least  true 
with  reference  to  all  tribes  not  utterly  lost  in  despotism,  as  the 
Asiatics  are.  The  periods  succeeding  those  of  great  and  bril- 
liant despots  have  always  been  calamitous.'  The  noblest 
human  work,  nobler  even  than  literature  and  science,  is  broad 
civil  liberty,  well  secured  and  wisely  handled.  The  highest 
ethical  and  social  production  of  which  man,  with  his  insepa- 
rable moral,  jural,  aesthetic  and  religious  attributes,  is  capable, 
is  the  comprehensive  and  minutely  organic  self-government  of 
a  free  people ;  and  a  people  truly  free  at  home,  and  dealing 
in  fairness  and  justice  with  other  nations,  is  the  greatest,  un- 
fortunately also  the  rarest,  subject  offered  in  all  the  breadth 
and  length  of  history. 

In  the  definitions  of  civil  liberty  which  philosophers  or  pub- 
licists have,  nevertheless,  endeavored  to  give,  they  seem  to 
have  fallen  into  one  or  more  of  the  following  errors.  Some 
have  confounded  liberty,  the  status  of  the  freeman  as  opposed 
to  slavery,  with  civil  liberty.  But  every  one  is  aware  that 
while  we  speak  of  freemen  in  Asia,  meaning  only  non-slaves, 


The  claims  of  "undoubted  sovereignty"  and  the  "independent  power"  of 
kings,  put  forth  by  the  Stuarts,  by  Louis  XIV.,  and  by  all  who  looked  upon 
kings,  restricted  in  their  power,  as  unworthy  peers  of  the  "real  princes,"  must 
be  classed  under  the  same  head  with  the  aspirations  of  the  principate  of  Daho- 
mey, however  they  may  differ  in  form. 

'  I  liave  duel;  on  this  subject  at  length  in  my  Political  Ethics. 


AND  SELF-  C  O  VERXMENT. 


27 


we  would  be  very  unwilling  to  speak  of  civil  liberty  in  that 
part  of  the  globe.  The  ancients  knew  this  distinction  per- 
fectly well.  There  were  the  Spartans,  constituting  the  ruling 
body  of  citizens,  and  enjoying  what  they  would  have  called^ 
in  modern  language,  civil  liberty,  a  full  share  in  the  govern- 
ment of  the  polity;  there  were  Helots;  and  there  were  Lace- 
daemonian people,  who  were  subject,  indeed,  to  the  sovereign 
body  of  the  Spartans,  but  not  slaves.  They  were  freemen, 
compared  to  the  Helots ;  but  subjects,  as  distinguished  from 
the  Spartans.  This  distinction  is  very  plain,  but  the  confusion 
has  not  only  frequently  misled  in  times  past,  but  is  actually 
going  on  to  this  day  in  many  countries. 

Others  have  fallen  into  the  error  of  substituting  a  different 
word  for  liberty,  and  believed  that  they  had  thus  defined  it; 
while  others,  again,  have  confounded  the  means  by  which 
liberty  is  secured  in  certain  communities,  with  liberty  itself. 
Some,  again,  have  been  led,  unawares,  to  define  an  idea  wholly 
different  from  civil  liberty,  while  imagining  that  they  were 
giving  the  generics  and  specifics  of  the  subject. 

The  Roman  lawyers  say  that  liberty  is  the  power  (authority) 
of  doing  that  which  is  not  forbidden  by  the  law.  That  the 
supremacy  of  the  law  and  exclusion  of  arbitrary  interference 
is  a  necessary  element  of  all  liberty,  every  one  will  readily 
admit;  but  if  no  additional  characteristics  be  given,  we  have, 
indeed,  no  more  than  a  definition  of  the  status  of  a  non-slave. 
It  does  not  state  whence  the  laws  ought  to  come,  or  what 
spirit  ought  to  pervade  them.  The  same  lawyers  say :  What- 
ever may  please  the  ruler  has  the  force  of  law.'  They  might 
have  said  with  equal  correctness  :  Freeman  is  he  who  is  di- 
rectly subject  to  the  emperor ;  slave,  he  who  is  subject  to  the 
emperor  through  an  intermediate  and  individual  master.  It 
settles  nothing  as  to  what  we  call  liberty,  as  little  as  the  other 
dictum  of  the  civil  law,  which  divides  all  men  into  freemen 
and  slaves.  The  meaning  of  freeman,  in  this  case,  is  nothing 
more  than  non-slave ;  while  our  word  freeman,  when  we  use 


'  Quod  principi  placuerit  legis  habet  vigorem. — L.  i.  lib.  i.  tit.  4  Dig. 


28  ON  CIVIL  LIBERTY 

it  in  connection  with  civil  liberty,  means  not  merely  a  nega- 
tion of  slavery,  but  the  enjoyment  of  positive  and  high  civil 
privileges  and  rights/ 

It  is  remarkable  that  an  English  writer  of  the  last  century, 
Dr.  Price,  makes  the  same  simple  division  of  slavery  and 
liberty,  although  it  leads  him  to  very  different  results.^  Ac- 
cording to  him,  liberty  is  self-determination  or  self-govern- 
ment, and  every  interruption  of  self-determination  is  slavery. 
This  is  so  extravagant,  that  it  is  hardly  worth  our  while  to 
show  its  fallacy.  Civil  liberty  is  liberty  in  a  state  of  society ; 
that  is,  in  a  state  of  union  with  equals;  consequently,  limita- 
tion of  self-determination  is  one  of  the  necessary  character- 
istics of  civil  liberty. 

Cicero  says  :  Liberty  is  the  power  of  living  as  thou  willest.3 
This  does  not  apply  to  civil  liberty.  It  would  apply  to  savage 
insulation.  If  it  was  meant  for  political  liberty,  it  would 
have  been  necessary  to  add,  "  so  far  as  the  same  liberty  of 
others  does  not  limit  your  own  living  as  you  choose."  But 
we  always  live  in  society,  so  that  this  definition  can  have  a 
value  only  as  a  most  general  one,  to  serve  as  a  starting-point, 
in  order  to  explain  liberty  if  applied  to  different  spheres. 
Whether  this  was  the  probable  intention  of  a  practical  Roman, 
I  need  not  decide. 

Libertas  came  to  signify,  in  the  course  of  time,  and  in 
republican  Rome,  simply  republican  government,  abolition 
of  royalty.  We  have  advanced  beyond  this  idea.  The  most 
sanguinary  pages  of  history  have  taught  us  that  a  kingless 
government  is  not,  on  that  account  alone,  a  republic,  if  the 
term  republic  is  intended  to  comprehend  the  idea  of  self- 
government  in  any  degree.  France  had  as  absolute  and  as 
stringently  concentrated  a  government  under  her  so-called 
republics,  as  under  any  of  her  kings.    To  classify  governments. 


•  Summa  divisio  de  jure  personarum  haec  est,  quod  omnes  homines  aut  liberi, 
sunt  a.it  servi. — Inst.,  i.  3. 

"  01«ervations  on  the  Nature  of  Civil  Liberty,  etc.,  by  Richard  Price,  D.D., 
3d  ed.,  Lond.,  1776. 

3  Quid  est  libertas?     P  'estas  vivendi  ut  velis. — Cic,  Parad.,  5,  I,  34. 


am:)  self-government.  2Q 

with  reference  to  liberty,  into  monarchies  and  repubh'cs,  is  an 
error  in  principle.  An  Englishman  who  lives  under  a  mon- 
archy, for  such  certainly  his  royal  republic  is  called,  enjoys 
an  amount  of  self-government  and  individual  liberty  far  greater 
than  the  Athenian  ever  possessed  or  is  established  in  any 
republic  of  South  America. 

The  Greeks  likewise  gave  the  meaning  of  a  distinct  form  of 
government  to  their  word  for  liberty.  Eleutheria,  they  said, 
is  that  polity  in  which  all  are  in  turn  rulers  and  ruled.  It  is 
plain  that  there  is  an  inkling  of  what  we  now  call  self-govern- 
ment in  this  adaptation  of  the  word,  but  it  does  not  designate 
liberty  as  we  understand  it.  For  it  may  happen,  and  indeed 
it  has  happened  repeatedly,  that  although  the  rulers  and  ruled 
change,  those  that  are  rulers  are  arbitrary  and  oppressive 
whenever  their  turn  arrives;  and  no  political  state  of  things 
is  more  efficient  in  preparing  the  people  to  pass  over  into 
despotism,  by  a  sudden  turn,  than  this  alternation  of  arbitrary 
rule.  If  this  definition  really  defined  civil  liberty,  it  would 
have  been  enjoyed  in  a  high  degree  by  those  communities  in 
the  middle  ages,  in  which  constant  changes  of  factions  and 
persecutions  of  the  weaker  parties  were  taking  place.  Athens, 
when  she  had  sunk  so  low  that  the  lot  decided  the  appoint- 
ment to  all  important  offices,  would  at  that  very  period  have 
been  freest,  while  in  fact  her  government  had  become  plain 
democratic  absolutism,  one  of  the  very  worst  of  all  govern- 
ments, if,  indeed,  the  term  government  can  be  properly  used 
of  that  state  of  things  which  exhibits  Athens  after  the  times 
of  Alexander,  not  like  a  bleeding  and  fallen  hero,  but  rather 
like  a  dead  body,  on  which  birds  and  vermin  make  merry. 

Not  wholly  dissimilar  to  this  definition  is  the  one  we  find 
in  the  French  Political  Dictionary,  a  work  published  in  1848, 
by  leading  republicans,  as  this  term  was  understood  in  France. 
It  says,  under  the  word  liberty:  "Liberty  is  equality,  equality 
is  liberty."  If  both  were  the  same,  it  would  be  surprising  that 
there  should  be  two  distinct  words.  Why  were  both  terms 
used  in  the  famous  device,  "  Liberty,  Equality,  Fraternity,"  if 
the  first  two  are  synonymous,  yet  an  epigrammatic  brevity 


30  O.y   CIVIL   LIBERTY 

was  evidently  desired  ?  Napoleon  distinguished  between  the 
two  very  pointedly,  when  he  said  to  Las  Cases  that  he  gave 
to  the  Frenchmen  all  the  circumstances  allowed,  namely^ 
equality,  and  that  his  son,  had  he  succeeded  him,  would  have 
added  liberty.  The  dictum  of  Napoleon  is  mentioned  here 
merely  to  show  that  he  saw  the  difference  between  the  two 
terms.  Equality,  of  itself,  without  many  other  elements,  has 
no  intrinsic  connection  with  libert)'.  All  may  be  equally  de- 
graded, equally  slavish,  or  equally  tyrannical.  Equality  is 
one  of  the  pervading  features  of  Eastern  despotism.  A  Turk- 
ish barber  may  be  made  vizier  far  more  easily  than  an  Amer- 
ican hair-dresser  can  be  made  a  commissioner  of  roads,  but 
there  is  not  on  that  account  more  liberty  in  Turkey.'  Diver- 
sity is  the  law  of  life ;  absolute  equality  is  that  of  stagnation 
and  death.^ 

A  German  author  of  a  work  of  mark  begins  it  with  this 
sentence:  "  Liberty — or  justice,  for  where  there  is  justice 
there  is  liberty,  and  liberty  is  nothing  else  than  justice — has 
by  no  means  been  enjoyed  by  the  ancients  in  a  higher  degree 
than  by  the  moderns."3  Either  the  author  means  by  justice 
something  peculiar,  which  ojiglit  to  be  enjoyed  by  every  one, 
and  which  is  not  generally  understood  by  the  term,  in  which 
case  the  whole  sentence  is  nugatory,  or  it  expresses  a  grave 
error,  since  it  makes  equivalents  of  two  things  which  have  re- 
ceived two  different  names,  simply  because  they  are  distinct 


'  Since  the  puljlication  of  the  first  edition  of  this  work,  an  .nrlicle  on  "  Ma- 
hometanism  in  Western  Asia,"  has  appeared  in  the  "  Edinburgh  Review,"  Octo- 
ber, 1853,  in  which  the  Eastern  equality  as  an  ingredient  of  despotism  is  ilhis- 
trated  by  many  striking  instances  from  differen*^  spheres  of  life.  The  writer, 
who  is  plainly  master  of  his  subject,  from  personal  knowledge,  it  would  appear, 
agrees  with  us  that  liberty  is  based  on  individuality.  Indeed,  it  may  be  said 
that  in  a  great  degree  it  consists  in  essential  protection  of  individuality,  of  per- 
sonal rights.  The  present  Emperor  of  the  French  felt  this  when  he  wrote  his 
chapter,  De  la  Libert^  individuelle  en  Angleterre.  He  was  then  an  exile  and 
could  perceive  liberty. 

»  More  has  been  said  on  this  subject  in  Political  Ethics,  and  we  shall  return 
to  it  at  a  later  period. 

3  Descriptions  of  the  Grecian  Polities,  by  F.  W.  Tittmann  ;  Leipsic,  1822. 


AXn  SELF-GOVERNMENT. 


31 


from  one  another.  The  two  terms  would  not  even  be  allowed 
to  explain  each  other  in  a  dictionary. 

Liberty  has  not  unfrequently  been  defined  as  consisting  in 
the  rule  of  the  majority,  or  it  has  been  said,  Where  the  people 
rule  there  is  liberty.  The  rule  of  the  majority,  of  itself,  indi- 
cates the  power  of  a  certain  body ;  but  power  is  not  liberty. 
Suppose  the  majority  bid  you  drink  hemlock,  is  there  liberty 
for  you  ?  Or  suppose  the  majority  give  away  liberty,  and 
establish  despotism  ?  It  has  been  done  again  and  again  : 
Napoleon  III.  claims  his  crown  by  right  of  election  by  the 
overwhelming  majority  of  Frenchmen,  and  perpetuates  his 
government  by  universal  suffrage,  as  he  says.  Granting,  for 
the  sake  of  argument,  that  there  was  what  we  call  a  bona  fide 
election,  and  that  there  is  now  existing  an  efficient  universal 
suffrage,  there  is  no  man  living  who  would  vindicate  liberty 
for  present  France.  Even  the  imperial  government  period- 
ically proclaims  that  it  cannot  yet  establish  liberty,  because 
France  is  distracted  by  factions,  by  "  different  nations,"  as  an 
imperial  dignitary  lately  expressed  it  in  an  official  speech. 

We  might  say  with  greater  truth,  that  where  the  minority 
is  protected,  although  the  majority  rule,  there,  probably, 
liberty  exists.  But  in  this  latter  case  it  is  the  protection,  or, 
in  other  words,  rights  beyond  the  reach  of  the  majority  which 
constitute  liberty,  not  the  power  of  the  majority.  There  can 
be  no  doubt  that  the  majority  ruled  in  the  French  massacres 
of  the  Protestants ;  was  there  liberty  in  France  on  that  ac- 
count ?  All  despotism,  without  a  standing  army,  must  be  sup- 
ported or  acquiesced  in  by  the  majority.  It  could  not  stand 
otherwise.  If  the  definition  be  urged,  that  where  the  people 
rule  there  is  liberty,  we  must  ask  at  once,  What  people,  and 
how  rule  ?  These  intended  definitions,  therefore,  do  not 
define. 

Other  writers  have  said:  "Civil  liberty  consists  in  the  re- 
sponsibility of  the  rulers  to  the  ruled."  It  is  obvious  that  this 
is  an  element  of  all  civil  liberty  ;  but  the  question,  What  respon- 
sibility is  meant?  is  an  essential  one;  nor  does  this  respon- 
sibility alone  suffice  by  any  means  to  establish  civil  liberty 


32 


ON  CIVIL  LIBERTY 


The  Dey  of  Algiers  used  to  be  elected  by  the  soldiery,  who 
deposed  him  if  he  did  not  suit ;  but  there  was  no  liberty  in 
Algiers,  not  even  for  the  electing  soldiery.  The  idea  of  the 
best  government,  repeatedly  urged  by  a  distinguished  French 
publicist,  Mr.  Girardin,  is,  that  all  power  should  be  centred  in 
an  elective  chief  magistrate,  who  by  frequent  election  should 
be  made  responsible  to  the  people — in  fact,  an  elective  despot- 
ism. Is  there  an  American  or  Englishman  living  who  would 
call  such  a  political  monstrosity  freedom,  even  if  the  elected 
despot  would  allow  himself  to  be  voted  upon  a  second  time? 
This  conception  of  civil  liberty  was  the  very  one  which  Louis 
Napoleon  published  in  his  proclamation  issued  after  the  coup 
d'etat,  and  in  which  he  tells  the  people  that  he  leaves  their 
fate  in  their  own  hands  !  Many  Frenchmen  voted  for  him 
and  for  these  fundamental  principles  of  a  new  government, 
but  those  who  did  so,  voted  for  him  for  the  very  reason  that 
they  considered  liberty  dangerous  and  inadmissible.  This 
definition,  then,  is  peculiarly  incorrect. 

Again,  it  has  been  said,  liberty  is  the  power  of  doing  all 
that  we  ought  to  be  allowed  to  do.  But  who  allows  ?  What 
ought  to  be  allowed  ?  Even  if  these  questions  were  answered, 
it  would  not  define  liberty.  Is  the  imprisoned  homicide  free, 
although  we  allow  him  to  do  all  that  which  he  ought  to  be 
allowed  to  do?  No  despot,  if  not  positively  insane,  would  ask 
for  more  power.  It  is  on  the  very  ground  that  more  freedom 
ought  not  to  be  allowed  to  the  subject,  for  his  own  benefit  and 
the  welfare  of  the  empire,  that  the  greatest  despots  and  even 
tyrants  have  asserted  their  power;  nor  does  a  father  desire 
more  power  over  his  child,  but  he  does  not  pretend  to  con- 
found parental  power  with  the  establishment  of  liberty. 

Bodinus,  whom  every  scholar  of  political  science  remembers 
with  respect,  said  that  true  liberty  consists  in  nothing  else 
than  the  undisturbed  enjoyment  of  one's  goods  and  the  absence 
of  apprehension  that  wrong  be  done  to  the  honor  and  the  life 
of  one's  self,  of  one's  wife  and  family.'     He  who  knows  the 


'  De  Republica,  lib.  xii.  c.  6.     I  have  mentioned  in  my  Political  Ethics  that 
I  studied,  in  the  Congress  librar)',  the  copy  of  Bodinus  which  had  belonged  to 


AND  SEL F-GO  VERNMENT. 


33 


times  of  French  history  when  this  jurist  wrote  his  work  on 
the  republic,  sees  with  compassion  what  led  his  mind  to  form 
this  definition;  nor  is  it  denied  that  undisturbed  enjoyment 
of  property,  as  well  as  personal  safety,  constitute  very  im- 
portant objects  sought  to  be  obtained  by  civil  liberty ;  but  it 
is  the  firmly-established  guarantees  of  these  enjoyments  which 
constitute  portions  of  civil  liberty.  Haroun  al  Rashid  may 
have  allowed  these  enjoyments,  but  the  Arabians  had  not 
civil  liberty  under  him.  It  is  very  painful  to  observe  that,  in 
the  middle  of  the  nineteenth  century,  a  writer  could  be  re- 
duced to  declare  before  the  Institute  of  France,  in  an  elaborate 
essay,  that  this  definition  of  liberty  by  Bodinus  is  the  best 
ever  given.' 

Montesquieu  says  :^  "Philosophical  liberty  consists  in  the 
exercise  of  one's  will,  or  at  least  (if  we  must  speak  of  all  sys- 
tems) in  the  opinion  according  to  which  one  exercises  his  will. 
Political  liberty  consists  in  the  security,  or  at  least  in  the 
opinion  which  one  has  of  one's  security."  He  continues  : 
"This  security  is  never  more  attacked  than  in  public  and  pri- 
vate accusations.  It  is  therefore  upon  the  excellence  of  the 
criminal  laws  that  chiefly  the  liberty  of  the  citizen  depends. "3 

That  security  is  an  element  of  liberty  has  been  acknowl- 
edged;  that  just  penal  laws,  and  a  carefully  protected  penal 
trial,  are  important  ingredients  of  civil  liberty,  will  be  seen  in 
the  sequel ;  but  it  cannot  be  admitted  that  that  great  writer 
gives  a  definition  of  liberty  in  any  way  adequate  to  the  subject. 
We  ask  at  once,  What  security?  Nations  frequently  rush  into 
the  arms  of  despotism  for  the  avowed  reason  of  finding  secu- 
rity against  anarchy.  What  else  made  the  Romans  so  docile 
under  Augustus  ?    Those  French  who  insist  upon  the  "  neces 

President  Jefferson,  and  in  which  many  pencil-marks  and  notes  of  the  latter  are 
found.  It  will  interest  many  of  my  readers  to  hear  that  this  relic  has  not  per- 
ished in  the  fire  which  consumed  the  greater  portion  of  the  library. 

»  Mr.  Parry,  Stances  et  Travaux  de  I'Acad.  des  Sciences  Politiques  et  Morales, 
July,  1855. 

=  Esprit  des  Lois,  xii.  2  :  "Of  the  Liberty  of  the  Citizen." 
3  He  goes  on  treating  liberty  in  a  similar  manner;  for  instance,  at  the  begin- 
ning of  chapter  iv.  of  the  same  work. 

3 


34 


ON  CIVIL   LIBERTY 


sity"  of  Louis  Napoleon,  do  it  on  the  avowal  that  anarchy 
was  impending ;  but  no  one  of  us  will  say  that  Augustus  was 
the  harbinger  of  freedom,  or  that  the  French  emperor  allows 
the  people  any  enjoyment  of  liberty.  If,  however,  Montes- 
quieu meant  the  security  of  those  liberties  which  Algernon 
Sidney  meant  when  he  said,  "The  liberties  of  nations  are 
from  God  and  nature,  not  from  kings" — in  that  case  he  has 
not  advanced  the  discussion,  for  he  does  not  say  in  what  they 
consist. 

If,  on  the  other  hand,  the  penal  law,  in  which  it  must  be 
supposed  Montesquieu  included  the  penal  trial,  be  made  the 
chief  test  of  liberty,  we  cannot  help  observing  that  a  decent 
penal  trial  is  a  discovery  in  the  science  of  government  of  the 
most  recent  date.  The  criminal  trials  of  the  Greeks  and 
Romans,  and  of  the  middle  ages,  were  deficient  both  in  pro- 
tecting the  accused  and  society,  and,  without  trespassing,  we 
may  say  that  in  most  cases  they  were  scandalous,  according  to 
our  ideas  of  justice.  Must  we  then  say,  according  to  Montes- 
quieu, that  liberty  never  dwelt  in  those  states  ? ' 

To  pass  from  a  great  writer  to  one  much  his  inferior,  I  shall 
give  Dr.  Paley's  definition  of  civil  liberty.  He  says :  "  Civil 
liberty  is  the  not  being  restrained  by  any  law  but  what  con- 
duces in  a  greater  degree  to  the  public  welfare."  ^  I  should 
hardly  have  mentioned  this  definition,  but  that  the  work  from 
which  it  is  taken  is  still  in  the  hands  of  thousands,  and  that 
the  author  has  obviously  shaped  and  framed  it  with  attention. 
Who  decides  on  what  public  welfare  demands  ?     Is  that  no 


'  That  a  writer  of  Montesquieu's  sagacity  and  regard  for  liberty  should  have 
thus  insufficiently  defined  so  great  a  subject,  is  nothing  more  than  what  frequently 
happens.  No  man  is  always  himself,  and  Bishop  Berkeley,  on  Tar  Water, 
represents  a  whole  class  of  we,ak  thoughts  by  strong  minds.  I  do  not  only  agree 
with  what  Sir  James  Mackintosh  says  in  praise  of  Montesquieu,  in  his  Discourse 
on  the  Study  of  the  Law  of  Nature  and  Nations,  but  I  would  add,  that  no  per- 
son can  obtain  a  correct  view  of  the  history  through  which  political  liberty  has 
been  led  in  Europe,  or  can  possess  a  clear  insight  into  many  of  its  details,  with- 
out making  himself  acquainted  with  the  Spirit  of  Laws.  His  work  has  doubtless 
been  of  great  influence. 

»  Beginning  of  the  fifth  chapter  of  Paley's  Political  Philosophy. 


A. YD  SELF-GOVERNMENT.  35 

important  item  of  civil  liberty  ?  Who  makes  the  law?  Suffice 
it  to  say  that  the  definition  may  pass  for  one  of  a  good  govern- 
ment in  general,  that  is,  one  which  befits  the  given  circum- 
stances ;  but  it  does  not  define  civil  liberty.  A  Titus,  a  benevo- 
lent Russian  Czar,  a  wise  dictator,  a  conscientious  Sultan,  a 
kind  master  of  slaves,  ordain  no  restraint  but  what  they  think 
is  required  by  the  general  welfare ;  yet  to  say  that  the  Romans 
under  Titus,  the  Russian,  the  Asiatic,  the  slave,  is  on  that 
account  in  the  enjoyment  of  civil  liberty,  is  such  a  perversion 
of  language  that  we  need  not  dwell  upon  this  definition, 
surprising  even  in  one  who  does  not  generally  distinguish 
himself  by  unexceptionable  definitions. 

The  first  (monarchical)  French  constitution  of  September 
3,  1 79 1,'  says  :  "  Liberty  consists  in  the  right  to  do  everything 
that  does  not  injure  others.  Therefore,  the  practice  of  the 
natural  rights  of  each  man  has  no  other  limits  than  those 
which  secure  the  other  members  of  society  in  the  enjoyment 
of  the  same  rights.  These  limits  can  only  be  determined  by 
law."  The  last  sentence  makes  all  depend  on  the  law;  conse- 
quently we  must  ask  again.  Who  makes  the  law,  and  are  there 
no  limits  necessary  to  the  law  itself? 

Nothing  is  more  striking  in  history,  it  seems  to  me,  than  a 
comparison  of  this  declaration  and  of  the  "  Rights  of  Men" 
with  the  British  Petition  of  Right,  whether  we  consider  them 
as  fruits  or  as  seeds. 

The  second  (republican)  constitution  of  June  24,  1793,''  says: 
"  Liberty  is  that  faculty  according  to  which  it  belongs  to  man 
to  do  that  which  does  not  interfere  with  the  rights  of  others ; 
it  has  for  its  basis,  nature;  for  its  rule,  justice ;  for  its  protec- 
tion, the  law  ;  its  moral  limit  is  the  maxim,  Do  not  to  another 
that  which  thou  dost  not  wish  him  to  do  to  thyself 

This  definition  sufficiently  characterizes  itself" 

The  Constitution  of  the  United  States  has  no  definition  of 
liberty.     Its  framers  thought  no  more  of  defining  it  in  that 


'  Paragraph  four. 

»  Paragraph  six  of  the  Declaration  of  the  Rights  of  Men. 


36  ON  CIVIL  LIBERTY 

instrument,  than  people  going  to  be  married  would  stop  to 
define  what  is  love. 

We  almost  feel  tempted  to  close  this  list  of  definitions  with 
the  words  with  which  Lord  Russell  begins  his  chapter  on 
liberty.  He  curtly  says  :  "  Many  definitions  have  been  given 
of  liberty.     Most  of  these  deserve  no  notice."'' 

Whatever  the  various  definitions  of  civil  liberty  may  be,  we 
take  the  term  in  its  usual  adaptation  among  modern  civilized 
nations,  in  which  it  always  means  liberty  in  the  political  sphere 
of  man.  We  use  it  in  that  sense  in  which  freemen,  or  those 
who  strive  to  be  free,  love  it;  in  which  bureaucrats  fear  it  and 
despots  hate  it ;  in  a  sense  which  comprehends  what  has  been 
called  public  liberty  and  personal  liberty ;  and  in  conformity 
with  which  all  those  who  cherish  and  those  who  disrelish  it 
distinctly  feel  that,  whatever  its  details  may  be,  it  always 
means  a  high  degree  of  untrammeled  political  action  in  the 
citizen,  and  an  acknowledgment  of  his  dignity  and  his  impor- 
tant rights  by  the  government  which  is  subject  to  his  positive 
and  organic,  not  only  to  his  roundabout  and  vague  influence. 

This  has  always  been  felt ;  but  more  is  necessary.  We 
ought  to  know  our  subject.  We  must  answer,  then,  this  ques- 
tion :  In  what  does  civil  liberty  truly  consist? 


'  Lord  John  Russell's  History  of  the  English  Government  and  Constitution, 
second  ed.,  London,  1S25.  This  prominent  and  long- tried  statesman  distin- 
guishes, on  page  15,  between  civil,  personal,  and  political  liberty;  but  even  if  he 
had  been  more  successful  in  this  distinction  than  he  seems  to  me  actually  to  have 
been,  it  would  not  be  necessary  to  adopt  it  for  our  present  purpose. 


AND  SELF-GOVERNMENT.  37 


CHAPTER   III. 

THE    MEANING   OF    CIVIL   LIBERTY. 

Liberty,  in  its  absolute  sense,  means  the  faculty  of  willing 
and  the  power  of  doing  what  has  been  willed,  without  influ- 
ence from  any  other  source,  or  from  without.  It  means  self-^ 
determination;  unrestrainedness  of  action.   — - 

In  this  absolute  meaning,  there  is  but  one  free  being,  be^ 
cause  there  is  but  one  being  whose  will  is  absolutely  inde- 
pendent of  any  influence  but  that  which  he  wills  himself,  and 
whose  power  is  adequate  to  his  absolute  will — who  is  almighty. 
Liberty,  self-determination,  unrestrainedness  of  action,  ascribed 
to  any  other  being,  or  applied  to  any  other  sphere  of  action, 
has  necessarily  a  relative  and  limited,  therefore  an  approx- 
imative sense  only.  With  this  modification,  however,  we 
may  apply  the  idea  of  freedom  to  all  spheres  of  action  and 
reflection.' 


•  It  will  be  observed  that  the  terms  Liberty  and  Freedom  are  used  here  as 
synonymes.  Originally  they  meant  the  same.  The  German  Freiheit  (literally 
Freehood)  is  still  the  term  for  our  Liberty  and  Freedom  ;  but,  as  it  happened  in 
so  many  cases  in  our  language  where  a  Saxon  and  Latin  term  existed  for  the 
same  idea,  each  acquired  in  the  course  of  time  a  different  shade  of  the  original 
meaning,  either  permanently  so,  or  at  least  under  certain  circumstances.  Liberty 
and  Freedom  are  still  used  in  many  cases  as  synonymous.  We  speak  of  the 
freedom  as  well  as  the  liberty  of  human  agency.  It  cannot  be  otherwise,  since 
we  have  but  one  adjective,  namely  Free,  although  we  have  two  nouns.  When 
these  are  used  as  distinctive  terms,  freedom  means  the  general,  liberty  the  specific. 
We  say,  the  slave  was  restored  to  freedom ;  and  we  speak  of  the  liberty  of  the 
press,  of  civil  liberty.  Still,  no  orator  or  poet  would  hesitate  to  say  freedom  of 
the  press,  if  rhetorically  or  metrically  it  should  suit  better.  As  in  almost  all 
cases  in  which  we  have  a  Saxon  and  a  Latin  term  for  the  same  main  idea,  so  in 
this,  the  first,  because  the  older  and  original  term,  has  a  fuller,  more  compact, 
and  more  positive  meaning ;  the  latter  a  more  pointed,  abstract,  or  scientific 
sense.     This  appears  still  more  in  the  verbs,  to  free  and  to  liberate.     The  Ger 


38  ON  CIVIL  LIBERTY 

If  we  apply  the  idea  of  self-determination  to  the  sphere  of 
politics,  or  to  the  state,  and  the  relations  which  subsist 
between  it  and  the  individual,  and  between^ifferent  states, 
we  must  remember  that  the  following  points  are  necessarily 
involved  in  the  comprehensive  idea  of  the  state : — 

The  state  is  a  society,  or  union  of  men — a  sovereign  society 
and  a  society  of  human  beings,  with  an  indelible  character  of 
individuality.  The  state  is,  moreover,  an  institution  which 
acts  through  government,  a  contrivance  which  holds  the 
power  of  the  whole,  opposite  to  the  individual.  Since  the 
state  then  implies  a  society  which  acknowledges  no  superior, 
the  idea  of  self-determination  applied  to  it  means  that,  as  a 
unit  and  opposite  to  other  states,  it  be  independent,  not  dic- 
tated to  by  foreign  governments,  nor  dependent  upon  them 
any  more  than  itself  has  freely  assented  to  be,  by  treaty  and 
[upon  the  principles  of  common  justice  and  morality,  and  that 
lit  be  allowed  to  rule  itself,  or  that  it  have  what  the  Greeks 
chiefly  meant  by  the.  word   autonomy.'     The   term   state,  at 


/man  language  has  but  one  word  for  our  Freedom  and  Liberty,  namely  Freiheit ; 

[and  Freithum  (literally  freedom)  means,  in  some  portions  of  Germany,  an  estate 
of  a  Freiherr  (baron).  In  Dutch,  the  word  Vryheid  (literally  freehood)  is  free- 
dom, liberty;  while  Vrydom  (literally  freedom)  means  a  privilege,  an  exemption 
from  burdens.  This  shows  still  more  that  these  words  meant  originally  the  same. 
[The  greater  part  of  this  note,  relating  to  the  derivation  of  several  words 
signifying yVi?i?,  and  a  note  a  little  farther  on,  relating  to  the  connection  between 
frei  and  friede  {free  and  peace  in  German),  have  been  omitted,  since  much  of 
what  is  said  is  not  sanctioned  by  etymologists  of  the  highest  repute.  Dr.  Lieber 
derives  the  Greek  iTievdepo^  from  the  root  eAvd,  cowe,  ox  go — a  derivation  which 
J.  Grimm  and  G.  Curtius  accept,  while  Benfey,  Kirchhoff,  and  Corssen  prefer 
to  connect  the  Greek  word  with  the  Latin  Itbcr.  Liber,  again,  seems  to  have 
nothing  in  common  with  the  German  leib,  body,  as  Dr.  Lieber  supposed,  but  is 
connected  by  G.  Curtius  with  "h.^-  in  TdizTofiai,  a  rare  Greek  word  denoting  to  long 
for.  There  must  be  a  common  root,  as  Grimm  thinks,  in  /tber,  llbet,  I  bet,  and 
in  German  lieben,  our  love.  Frei,  free,  does  not  seem  to  belong  to  the  same  root 
•w\\.\\  friede,  peace.  Comp.  Grimm's  Deutsch.  Worterb.  Whatever  the  deriva- 
tion of  this  word  may  be,  we  may  well  suppose,  as  Grimm  suggests,  that  the 
notion  of  peace  is  derived  from  the  earlier  one  oi  fence,  defense,  protection. 
Comp.  einfrieden,  to  fence  or  hedge  in.] 

'  Autonomeia  is  literally  translated  Self-government,  and  undoubtedly  suggested 
the  English  word  to  our  early  divines.     Donaldson,  in  his  Greek  Dictionary 


AND  SELF-GOVERNMENT. 


39 


the  same  time,  means  a  society  of  men,  that  is,  of  beings 
with  individual  destinies  and  responsibilities  from  which  arise 
individual  rights,'  that  show  themselves  the  clearer  and  become 
more  important,  as  man  advances  in  political  civilization. 
Since,  then,  he  is  obliged  and  destined  to  live  in  society,  it  is 
necessary  to  prevent  these  rights  from  being  encroached  upon 
by  his  associates.  Since,  however,  not  only  the  individual 
rights  of  man  become  more  distinctly  developed  with  advancing 
civilization,  but  also  his  social  character  and  all  mutual  de- 
pendence, this  necessity  of  protecting  each  individual  in  his 
most  important  rights,  or,  which  is  the  same,  of  checking  each 
from  interfering  with  each,  becomes  more  important  with 
every  progress  he  makes. 

Lastly,  the  idea  of  the  state  involving  the  idea  of  govern- 
ment, that  is,  of  a  certain  contrivance  with  coercing  power 
superior  to  the  power  of  the  individual,  the  idea  of  self- 
determination  necessarily  implies  protection  of  the  individual 
against  encroaching  power  of  the  government,  or  checks 
against  government  interference.  And  again,  society  as  a 
unit  having  its  objects,  ends,  and  duties,  liberty  includes  a 
proper  protection  of  government,  as  well  as  an  efficient  con- 
trivance to  coerce  it  to  carry  out  the  views  of  society  and  to 
obtain  its  objects. 

We  come  thus  to  the  conclusion  that  liberty,  applied  to 
political  man,  practically  means,  in  the  main,  protection  or 


gives  Self-government  as  the  English  equivalent  for  the  Greek  Autonomy,  but, 
as  it  has  been  stated  above,  it  meant  in  reality  independence  of  other  states,  a 
non-colonial,  non-provincial  state  of  things.  I  beg  the  reader  to  remember  this 
fact,  for  it  is  significant  that  the  term  autonomy  retained  with  the  Greeks  this 
meaning,  facing  as  it  were  foreign  states,  and  that  Self-government,  the  same 
word,  has  acquired  with  ourselves,  chiefly,  or  exclusively,  a  domestic  meaning, 
facing  the  relations  in  which  the  individual  and  home  institutions  stand  to  the 
state  which  comprehends  them. 

'  The  fact  that  man  is  in  his  veiy  essence  at  once  a  social  being  and  an  indi- 
vidual, that  the  two  poles  of  sociality  and  individualism  must  forever  determine 
his  political  being,  and  that  he  cannot  give  up  either  the  one  or  the  other,  with 
the  many  relations  flowing  from  this  fundamental  point,  form  the  main  subject 
of  the  first  volume  of  my  Political  Ethics,  to  which  I  would  refer  the  reader. 


40 


ON  CIVIL  LIBERTY 


checks  against  undue  interference,  whether  this  be  from  in- 
dividuals, from  masses,  or  from  government.  The  highest 
amount  of  liberty  comes  to  signify  the  safest  guarantees  of 
undisturbed  legitimate  action,  and  the  most  efficient  checks 
against  undue  interference.  Men,  however,  do  not  occupy 
themselves  with  that  which  is  unnecessary.  Breathing  is 
unquestionably  a  right  of  each  individual,  proved  by  his 
existence ;  but,  since  no  power  has  yet  interfered  with  the 
undoubted  right  of  respiration,  no  one  has  ever  thought  it 
necessary  to  guarantee  this  elementary  right.  !We  advance 
then  a  step  farther  in  practically  considering  civH  liberty,  and 
find  that  it  chiefly  consists  in  guarantees  (and  corresponding 
checks)  of  those  rights  which  experience  has  proved  to  be 
most  exposed  to  interference,  and  which  men  hold  dearest  and 
most  important. 

This  latter  consideration  adds  a  new  element.  Freemen 
protect  their  most  important  rights,  or  those  rights  and  those 
attributes  of  self-determination,  which  they  hold  to  be  most 
essential  to  their  idea  of  humanity ;  and  as  this  very  idea  of 
humanity  comprehends  partly  some  ideas  common  to  men  of 
all  ages,  when  once  conscious  of  their  humanity,  and  partly 
other  ideas,  which  differ  according  to  the  view  of  humanity 
itself  which  may  prevail  at  different  periods,  we  shall  find,  in 
examining  the  great  subject  of  civil  freedom,  that  there  are 
certain  permanent  principles  met  with  wherever  we  discover 
any  aspiration  to  liberty ;  and  that,  on  the  other  hand,  it  is 
rational  to  speak  of  ancient,  medieval,  or  modern  liberty,  ot 
Greek  or  Roman,  Anglican  and  Galilean,  Pagan  and  Christian, 
American  and  English  liberty.  Certain  tribes  or  nations, 
moreover,  may  actually  aim  at  the  same  objects  of  liberty,  but 
may  have  been  led,  in  the  course  of  their  history,  and  accord- 
ing to  the  variety  of  circumstances  produced  in  its  long  course, 
to  different  means  to  obtain  similar  ends.  So  that  this  fact, 
likewise,  would  evolve  different  systems  of  civil  liberty,  either 
necessarily  or  only  incidentally  so.  Politics  are  like  archi- 
tecture, which  is  determined  by  the  objects  the  builder  has  in 
view,  the  materials  at  his  disposal,  and  the  desire  he  feels  of 


A  ND  SELF-  G  O  VERNMENT. 


4i 


manifesting  and  revealing  ideas  and  aspirations  in  the  material 
before  him.  Civil  liberty  is  the  idea  of  liberty  in  connection 
with  politics,  and  must  necessarily  partake  of  the  character 
of,  or  intertwine  itself  with,  the  whole  system  of  politics  of  a 
given  nation. 

This  view,  however  correct,  has,  nevertheless,  misled  many 
nations.  It  is  true,  that  the  system  of  politics  must  adapt 
itself  to  the  materials  and  destinies  of  a  nation;  but  this  very 
truth  is  frequently  perverted  by  rulers  who  wish  to  withhold 
liberty  from  the  people,  and  do  it  on  the  plea  that  the  destiny 
of  the  nation  is  conquest,  or  concentrated  action  in  different 
spheres  of  civilization,  with  which  liberty  would  interfere.  In 
the  same  manner  are,  sometimes,  whole  portions  of  a  people, 
or  even  large  majorities,  misled.  They  seem  to  think  that 
there  is  a  fate  written  somewhere  beyond  the  nation  itself,  and 
independent  of  its  own  morality,  to  which  everything,  even 
justice  and  liberty,  must  be  sacrificed.  It  is  at  least  a  very 
large  portion  of  the  French  that  thus  believes  the  highest 
destiny  of  France  to  consist  in  ruling  as  the  first  power  in 
Europe,  and  who  openly  say  that  everything  must  bend  to 
this  great  destiny.  So  are  many  among  us,  who  seem  to 
believe  that  the  highest  destiny  of  the  United  States  consists 
in  the  extension  of  her  territory — a  task  in  which,  at  best,  we 
can  only  be  imitators,  while,  on  the  contrary,  our  destiny  is 
one  of  its  own,  and  of  a  substantive  character. 

At  the  present  stage  of  our  inquiry,  however,  we  have  not 
time  to  occupy  ourselves  with  these  aberrations. 

All  that  is  necessary  to  vindicate  at  present  is,  that  it  is 
sound  and  logical  to  speak  of  eternal  principles  of  liberty,  and 
at  the  same  time  of  ancient  and  modern  liberty,  and  that  there 
may  be,  and  often  must  be,  various  systems  of  civil  liberty, 
though  they  need  not,  on  that  account,  differ  as  to  the  inten- 
sity of  liberty  which  they  guarantee. 

That  Civil  Liberty,  or  simply  Liberty,  as  it  is  often  called, 
naturally  comes  to  signify  certain  measures,  institutions,  guar- 
antees or  forms  of  government,  by  which  people  secure  or 
hope  to  secure  liberty,  or  an  unimpeded  action  in  those  civil 


42 


ON  CIVIL  LIBERTY 


matters,  or  those  spheres  of  activity  which  they  hold  most 
important,  appears  even  from  ancient  writers.  When  Aris- 
totle, in  his  work  on  politics,  speaks  of  liberty,  he  means  cer- 
tain peculiar  forms  of  government,  and  he  uses  these  as  tests, 
to  decide  whether  liberty  does  or  does  not  exist  in  a  polity 
which  he  contemplates  at  the  time.  In  the  Latin  language 
Libertas  came  to  signify  what  we  call  republic,  or  a  non-regal 
government.  Respublica  did  not  necessarily  mean  the  same 
as  our  word  Republic,  as  our  term  Commonwealth  may  mean 
a  republic — a  commonwealth  man  meant  a  republican  in  the 
English  revolution^ — but  it  does  not  necessarily  do  so.  When 
we  find  in  Quintilian  the  expression,  Asserere  libertatcni  reipub- 
licce,  we  clearly  see  that  respublica  does  not  necessarily  mean 
republic,  but  only  when  the  commonwealth,  the  system  of 
public  affairs,  was  what  we  now  call  a  republic.  Since  this, 
however,  actually  was  the  case  during  the  best  times  of  Roman 
history,  it  was  natural  that  respublica  received  the  meaning 
of  our  word  republic  in  most  cases. 

The  term  liberty  had  the  same  meaning  in  the  middle  ages, 
wherever  popular  governments  supplanted  monarchical,  often 
where  they  superseded  aristocratic  polities.  Liberty  and 
republic  became  in  these  cases  synonymous.^ 


'  The  republic — if,  indeed,  we  can  say  that  an  actual  and  bona  fide  republic 
ever  existed  in  England — was  called  the  State,  in  contradistinction  to  the  regal 
government.  During  the  Restoration  under  Charles  II.,  men  would  say,  "  In 
the  times  of  the  State,"  meaning  the  interval  between  the  death  of  the  first 
Charles  and  the  resumption  of  government  by  the  second.  The  term  State 
acquired  first  this  peculiar  meaning  under  the  Presbyterian  government. 

*  It  is  in  a  similar  sense  that  Freiligrath,  a  modern  German  poet,  begins  one 
of  his  most  fervent  songs  Avith  the  line,  Die  Freiheit  ist  die  Republik ;  that  is, 
Freedom  is  the  Republic.  On  the  other  hand,  I  find  that  Prussia,  at  the  time 
of  Frederic  the  Great,  was  called,  on  a  few  occasions,  the  Republic,  manifestly 
without  any  reference  to  the  form  of  government,  and  meaning  simply  the  com 
mon  or  public  weal  or  concern. 


AND  SELF-GOVERNMENT. 


43 


CHAPTER    IV. 

ANCIENT   AND    MODERN    LIBERTY. — ANCIENT,    MEDIEVAL,    AND 

MODERN    ST.\TES. 

That  which  the  ancients  understood  by  liberty  differed 
essentially  from  what  we  moderns  call  civil  liberty.  Man 
appeared  to  the  ancients  in  his  highest  and  noblest  character 
when  they  considered  him  as  a  member  of  the  state  or  as  a 
political  being.  Man  could  rise  no  higher  in  their  view. 
Citizenship  was  in  their  eyes  the  highest  phase  of  humanity. 
Aristotle  says  in  this  sense,  the  state  is  before  the  individual. 
With  us  the  state,  and  consequently  the  citizenship,  remain 
means — all-important  ones,  indeed,  but  still  means — to  obtain 
still  higher  objects,  the  fullest  possible  development  of  hu- 
manity in  this  world  and  for  the  world  to  come.  There  was 
no  sacrifice  of  individuality  to  the  state  too  great  for  the 
ancients.  The  greatest  political  philosophers  of  antiquity 
unite  in  holding  up  Sparta  as  the  best  regulated  common- 
wealth— a  communism  in  which  the  individual  was  sacrificed 
in  such  a  degree,  that  to  the  most  brilliant  pages  of  all  history 
she  has  contributed  little  more  than  deeds  of  bravery  and 
salient  anecdotes  of  stoic  heroism.  Greece  has  rekindled 
modern  civilization,  in  the  restoration  of  letters.  The  de- 
generate keepers  of  Greek  literature  and  art,  who  fled  from 
Constantinople  when  it  was  conquered  by  the  Turks,  and 
settled  in  Western  Europe,  were  nevertheless  the  harbingers 
of  a  new  era.  So  great  was  Grecian  knowledge  and  civiliza- 
tion even  in  this  weakened  and  crippled  state  !  Yet  in  all  that 
intellectuality  of  Greece  which  lighted  our  torch  in  the  fifteenth 
and  sixteenth  centuries,  there  is  hardly  a  single  Lacedaemonian 
element. 

Plato,  when  he  endeavors  to  depict  a  model  republic,  ends 


44 


ON  CIVIL  LIBERTY 


with  giving  us  a  communism,  in  which  even  individual  mar- 
riage is  destroyed  for  his  higher  classes.^ 

We,  on  the  other  hand,  acknowledge  individual  and  primor- 
dial rights,  and  seek  one  of  the  highest  aims  of  civil  liberty  in 
the  most  efficient  protection  of  individual  action,  endeavor, 
and  rights.  I  have  dwelt  upon  this  striking  and  instructive 
difference  at  length  in  my  work  on  Political  Ethics,^  where 
I  have  endeavored  to  support  the  opinion  here  stated  by  his- 
torical facts  and  passages  of  the  ancients.  I  must  refer  the 
reader,  therefore,  to  that  part  of  the  work ;  but  there  is  a 
passage  which  seems  to  me  so  important  for  the  present  in- 
quiry, as  well  as  for  another  which  will  soon  occupy  our 
attention,  that,  unable  to  express  myself  better  than  I  have 
done  in  the  mentioned  work,  I  must  beg  leave  to  insert  it 
here.     It  is  this: — 

"We  consider  the  protection  of  the  individual  as  one  of  the 
chief  subjects  of  the  whole  science  of  politics.  The  -oXiru-^ 
i7:if7Trj/j.7j,  or  political  science  of  the  ancients,  does  not  occupy 
itself  with  the  rights  of  the  individual.  The  ancient  science 
of  politics  is  what  we  would  term  the  art  of  government,  that 
is,  '  the  art  of  regulating  the  state,  and  the  means  of  pre 
serving  and  directing  it.'  The  ancients  set  out  from  the  idea 
of  the  state,  and  deduce  every  relation  of  the  individual  to  it 
from  this  first  position.  The  moderns  acknowledge  that  the 
state,  however  important  and  indispensable  to  mankind,  how 
ever  natural,  and  though  of  absolute  necessity,  still  is  but  a 
means  to  obtain  certain  objects,  both  for  the  individual  and  for 
society  collectively,  in  which  the  individual  is  bound  to  live 
by  his  nature.  The  ancients  had  not  that  which  the  moderns 
understand  by  jus  naturale,  or  the  law  ^\•hich  flows  from  the 
individual  rights  of  man  as    man,  and    serves  to  ascertain 


'  It  is  a  striking  fact  that  nearly  all  political  writers  who  have  indulged  in 
creating  Utopias — I  believe  all  without  exception — have  followed  so  closely  the 
ancient  writers,  that  they  rose  no  higher  than  to  communism.  It  may  be  owing 
in  part  to  the  fact  that  these  writers  composed  their  works  soon  after  the  restora- 
tion of  letters,  when  the  ancients  naturally  ruled  the  minds  of  men. 

'  Chapter  xiii.  of  the  second  book. 


AND  SELF- G O  VERNMEXT. 


45 


how,  by  means  of  the  state,  those  objects  are  obtained  which 
justice  demands  for  every  one.  On  what  supreme  power  rests, 
what  the  extent  and  hmitation  of  supreme  power  ought  to  be, 
according  to  the  fundamental  idea  of  the  state, — these  ques- 
tions have  never  occupied  the  ancient  votaries  of  pohtical 
science. 

"Aristotle,  Plato,  Cicero,  do  not  begin  with  this  question. 
Their  works  are  mainly  occupied  with  the  discussion  of  the 
question,  Who  shall  govern?  The  safety  of  the  state  is  their 
principal  problem  ;  the  safety  of  the  individual  is  one  of  our 
greatest.  No  ancient,  therefore,  doubted  the  extent  of  supreme 
power.  If  the  people  possessed  it,  no  one  ever  hesitated  in 
allowing  to  them  absolute  power  over  every  one  and  every- 
thing. If  it  passed  from  the  people  to  a  few,  or  was  usurped 
by  one,  they  considered,  in  many  cases,  the  acquisition  of 
power  unlawful,  but  never  doubted  its  unlimited  extent. 
Hence  in  Greece  and  Rome  the  apparently  inconsistent,  yet 
in  reality  natural,  sudden  transitions  from  entirely  or  partially 
popular  governments  to  absolute  monarchies  ;  while  in  modern 
states,  even  in  the  absolute  monarchies,  there  exists  a  certain 
acknowledgment  of  a  public  law  of  individual  rights,  of  the 
idea  that  the  state,  after  all,  is  for  the  protection  of  the 
individual,  however  ill  conceived  the  means  to  obtain  this 
object  may  be. 

"  The  idea  that  the  Roman  people  gave  to  themselves,  oi 
had  a  right  to  give  to  themselves,  their  emperors,  was  never 
entirely  abandoned,  though  the  soldiery  arrogated  to  them- 
selves the  power  of  electing  the  masters.  *  *  *  Yet  the 
moment  that  the  emperor  was  established  on  his  throne,  no 
one  doubted  his  right  to  the  absolute  supreme  power,  with 
whatever  violence  it  was  used.' 


'  This  was  written  in  the  year  1837.  Since  then,  events  have  occurred  in 
France  which  may  well  cause  the  reader  to  reflect  whether,  after  all,  the  author 
was  entirely  correct  in  drawing  this  peculiar  line  between  antiquity  and  modern 
times.  All  I  can  say  in  this  place  is,  that  the  political  movements  in  France 
resemble  the  dire  imperial  times  of  Rome  just  so  far  as  the  French,  or  rather  the 
Napoleonists  among  them,  step  out  of  the  broad  path  of  modern  political  civili- 


46  ON  CIVIL  LIBERTY 

"  Liberty,  with  the  ancients,  consisted  materially  in  the  de- 
gree of  participation  in  government,  '  where  all  are  in  turn 
the  ruled  and  the  rulers.'  Liberty,  with  the  moderns,  consists 
less  in  the  forms  of  authority,  which  are  with  them  but  means 
to  obtain  the  protection  of  the  individual  and  the  undisturbed 
action  of  society  in  its  minor  and  larger  circles.  'Ehw^epia, 
indeed,  frequently  signifies,  with  the  Greek  political  writers, 
equality;  that  is,  absolute  equality;  and  jVwdjc,  equality,  as  well 
as  kXeo^^iepia,  are  terms  actually  used  for  democracy,'  by  which 
was  understood  what  we  term  democratic  absolutism,  or  un- 
limited despotic  power  in  the  demos,  which,  practically,  can 
only  mean  the  majority,  without  any  guarantee  of  any  rights. 
It  was,  therefore,  perfectly  consistent  that  the  Greeks  aimed 
at  perfect  liberty  in  perfect  equality,  as  Aristotle  states,  not 
even  allowing  a  difference  on  account  of  talent  and  virtue;  so 
that  they  give  the  TzdX.oq,  the  lot,  as  the  true  characteristic  of 
democracy.  They  were  consistently  led  to  the  lot ;  in  seeking 
for  liberty,  that  is,  the  highest  enjoyment  and  manifestation  of 
reason  and  will,  or  self-determination,  they  were  led  to  its 
very  negation  and  annihilation — to  the  lot,  that  is,  to  chance. 
Not  only  were  magistrates,  but  even  generals  and  orators 
determined  by  lot."'^ 

Had  the  ancients  possessed  other  free  states  than  city-states, 
they  would  have  been  forced  out  of  this  position ;  but  there 
were  no  states  in  antiquity,  if  we  take  the  term  in  the  adapta- 
tion in  which  we  use  it  when  we  mean  sovereign  political 
societies  spreading  over  extensive  territories  and  forming  an 
organic  legal  whole.     Even  the  vast  monarchies  of  ancient 


zation,  actually  courting  a  comparison  with  imperial  Rome,  and  that  this  renewed 
imperial  period  will  be  nothing  but  a  phase  in  the  long  chain  of  political  revul- 
sions and  ruptures  of  France.  The  phase  will  not  be  of  long  duration,  and,  after 
it  will  have  passed,  it  will  serve  as  aa  additional  proof  of  our  position. 

'  Plato,  Gorg.,  71. 

*  For  the  evidence  and  proof  I  must  refer  to  the  original.  [Dr.  Lieber  is  in 
an  error  in  classing  generals  among  the  officers  chosen  at  Athens  by  lot.  Comp. 
K.  F.  Hermann,  Gr.  Staatsalterth.,i.  §  149;  Schomann,  Gr.  Alterth.,  i.  422;  and 
Tittmann,  Staatsverfass.,  who  gives  a  list  of  appointments  to  office  by  lot  and  by 
cheirctonia,  pp.  31 1-3 18.] 


AXD  SELF-GOVERNMENT.  47 

Asia  were  conglomerated  conquests  with  much  of  what  has 
just  been  called  a  city-state.  Nineveh,  Babylon,  were  mighty 
cities  that  swayed  over  vast  dominions  as  mistresses,  but  did 
not  form  part  of  a  common  state  in  the  modern  term. 

In  the  middle  ages  liberty  appears  in  a  different  phase. 
The  Teutonic  spirit  of  individual  independence  was  one  of  the 
causes  which  led  to  the  feudal  system,  and  frequently  pros- 
pered under  it  in  rank  disorder.  There  was  no  state  proper 
in  the  middle  ages;  the  feudal  system  is  justly  called  a  mere 
system.  It  was  no  state ;  and  medieval  liberty  appears  in  the 
shape  of  liberties,  of  franchises,  singly  chartered,  separately 
conquered,  individually  arrogated — each  society,  party,  or 
person  obtaining  as  much  as  possible,  unmindful  of  others,  and 
each  denying  to  others  as  much  as  might  be  conveniently  done. 
The  term  freedom,  therefore,  came  distinctly  to  signify,  in  the 
middle  ages,  not  exactly  the  amount  of  free  action  allowed  to 
the  citizen  or  guaranteed  to  the  person  who  enjoyed  it,  but  the 
exemption  from  burdens  and  duties  imposed  upon  others  or 
exacted  in  former  times.  Liberty  had  not  yet  acquired  a  sub- 
stantive meaning,  although  it  need  not  be  mentioned  that  then, 
as  well  as  in  ancient  times,  the  principle  which  made  noble 
hearts  throb  for  liberty  and  independence  was  the  same  that 
has  made  the  modern  martyrs  of  liberty  mount  the  scaffold 
with  confidence  and  reliance  on  the  truth  of  thtir  cause. 

I  am  here  again  obliged  to  refer  to  the  Political  Ethics, 
where  I  have  treated  of  this  peculiarity  of  the  middle  ages  in 
the  chapter  on  the  duties  of  the  modern  representative,  contra- 
distinguished from  the  medieval  deputy.' 

The  nearer  we  approach  to  modern  times  the  more  clearly 
we  perceive  two  movements,  which,  at  first  glance,  would  ap- 
pear to  be  destructive  the  one  to  the  other.  On  the  one  hand 
states,  in  the  present  sense  of  the  term,  are  formed.  There 
is  a  distinct  period  in  the  history  of  our  race,  which  may  be 
aptly  called  the  period  of  nationalization.  Tribes,  fragments, 
separate  political  societies,  are  united  into  nations,  and  polit- 
ically they  appear  more  and  more  as  states.  It  is  one  of  the 
many  fortunate  occurrences  which  have  fallen  to  England  in 


48  ON  CIVIL  LIBERTY 

the  course  of  her  history,  that  she  became  nationah'zed  at  a 
comparatively  very  early  period.  The  feudal  system  was 
introduced  at  a  late  period,  and  as  a  royal  measure.  The 
king  made  the  Norman-English  nobility.  The  nobility  did 
not  make  the  king.  The  English  nobility,  therefore,  could 
not  resist  the  national  movement  and  consolidation  of  the 
people  into  a  nation,  as  it  did  on  the.  continent,  and  the 
crown  thus  not  being  obliged  to  gather  all  possible  strength, 
in  order  to  be  able  to  subdue  the  baronial  power,  had  not  the 
opportunity  to  pass  over  into  the  concentrated  principate. 
which  was  one  of  the  political  phases  in  every  other  part  of 
Europe.^ 

On  the  other  hand  we  observe  that  the  priceless  individual 
worth  and  value  which  Christianity  gives  to  each  human  being, 
by  making  him  an  individually  responsible  being,  with  the 
highest  duties  and  the  highest  privileges,  together  with  ad- 
vancing civilization,  in  a  great  measure  produced  by  itself — 
the  Teutonic  spirit  of  personal  independence,  connected  not  a 
little  with  the  less  impressionable,  and  therefore  more  tena- 
cious, and  sometimes  dogged  character  of  the  Teutonic — all 
these  combinedly,  developed  more  and  more  the  idea  of  indi- 
vidual rights,  and  the  desire  of  protecting  them. 


'  The  history  of  no  nation  reminds  the  student  so  frequently  of  the  fact  that 
"  His  ways  are  not  our  ways,"  as  that  of  England.  Many  events  which  have 
brought  ruin  elsewhere,  served  there,  in  the  end,  to  obtain  greater  liberty  and  a 
higher  nationality.  The  fact  that  the  Norman  nobility  in  England  was  the 
creature  of  the  king — for  this,  doubtless,  it  was,  although  they  came  as  Norman 
noblemen  to  the  field  of  Hastings — is  one  of  these  remarkable  circumstances. 
The  English  civil  wars;  the  fact  that  most  of  England's  monarchs  have  been 
indifferent  persons,  and  that  after  Alfred  the  Great  but  one  truly  great  man  has 
been  among  her  kings ;  the  inhospitable  climate,  which  was  treated  by  the  people 
like  a  gauntlet  thrown  down  by  nature ;  that  they  developed  that  whole  world 
of  domestic  comfort  and  well-being,  known  nowhere  else,  and  of  such  impor- 
tant influence  upon  all  her  political  life ;  her  limited  territory  ;  her  repeated 
change  of  language ;  her  early  conquests, — these  are  some  items  of  a  list  which 
might  easily  be  extended. 

Since  this  note  was  originally  written,  a  work  in  praise  of  Henry  VIH.  has 
attracted  sufficient  attention  to  make  it  necessary  for  me  to  state  that  the  nuthor 
means  William  III.  as  the  great  monarch  after  Alfred. 


AND  SELF-GOVERNMENT. 


A9 


These  two  facts  have  materially  influenced  the  development 
of  modern  liberty,  that  liberty  which  we  call  our  own.  The 
progress  we  value  so  much  was  greatly  retarded  on  the  conti- 
nent by  an  historical  process  which  was  universal  among  the 
nations  of  Europe,  excepting  those  of  Sclavonic  origin,  be- 
cause they  had  not  yet  entered  the  lists  of  civilization. 

The  feudal  system,  of  far  greater  power  on  the  continent 
than  in  England,  interfered  with  the  process  of  nationalization 
and  the  formation  of  states  proper.  The  people  gradually 
rose  to  a  higher  position,  a  higher  consciousness  of  rights, 
and  the  inhabitants  of  the  cities  generally  found  the  baronial 
element  hostile  to  them.  The  consequence  was,  that  the 
crowns  and  the  people  united  to  break  the  power  of  the 
baron.  But  in  the  same  degree  as  the  struggle  was  tenacious, 
and  the  crown  had  used  stronger  power  to  subdue  the  feudal 
lord,  it  found  itself  unshackled  when  the  struggle  was  over, 
and  easih'  domineered  over  both  the  people  and  the  lords. 
Then  came  the  time  of  absorbing  regal  power,  of  centraliza- 
tion and  monarchical  absolutism,  of  government-states,  as 
Niebuhr  calls  them.  The  liberties  of  the  middle  ages  were 
gone  ;  the  principles  of  self-government  were  allowed  to  exist 
nowhere ;  and  we  find,  at  the  present  period  only,  the  whole 
of  the  European  continent,  with  the  exception  of  Russia,  as 
a  matter  of  course,  engaged  in  an  arduous  struggle  to  regain 
liberty,  or  rather  to  establish  modern  freedom.  Everywhere 
the  first  ideas  of  the  new  liberty  were  taken  from  England, 
and,  later,  from  the  United  States.  The  desire  of  possessing 
a  well-guaranteed  political  liberty  and  enjoyment  of  free 
action  was  kindled  on  the  European  continent  by  the  example 
of  England.  The  course  which  we  observe  in  France,  from 
Montesquieu,  who,  in  his  brilliant  work  on  the  Spirit  of  Laws, 
has  chiefly  England  in  view  as  a  model,  to  the  question  at  the 
beginning  of  the  first  French  Revolution,  whether  the  princi- 
ples of  British  liberty  should  be  adopted,  was  virtually  repeated 
everywhere.  The  representative  principle,  the  trial  by  jury, 
the  liberty  of  the  press,  taxation  and  appropriations  by  the 
people's    representatives,  the  division  of  power,  the  habeas 

4 


50 


ON  CIVIL  LIBERTY 


corpus  principle,  publicity,  and  whatever  else  was  prominent 
in  that  liberty  peculiar  to  the  Anglican  race,  whether  it  had 
originated  with  it,  or  had  been  retained  by  it  when  elsewhere 
it  had  been  lost  in  the  general  shipwreck  of  freedom,  was 
longed  for  by  the  continental  people,  insisted  on,  or  struggled 
for. 

It  is  well,  then,  to  ask  ourselves.  In  what  does  this  Anglican 
liberty  consist?  The  answer  is  important,  in  a  general  point 
of  view,  as  well  as  because  it  is  the  broad  foundation  and 
frame-work  of  our  own  American  liberty. 


AND  SELF-GOVERNMENT.  51 


CHAPTER    V. 

ANGLICAN    LIBERTY. 

In  order  to  ascertain  in  what  this  peculiar  system  of  civil 
liberty  consists,  we  must  examine  those  charters  of  the  whole 
Anglican  race,  which  belong  to  "the  times  when  governments 
chartered  liberty,"  and  to  those  "  when  the  people  charter 
governments."  We  must  observe  what  principles,  measures, 
and  guarantees  were  most  insisted  upon  in  periods  most  dis- 
tinguished by  an  active  spirit  of  liberty,  of  opposition  to 
encroaching  power,  or  of  a  desire  to  prune  public  power  so  as 
to  make  it  in  future  better  harmonize  with  the  claims  of  indi- 
vidual liberty.  We  must  see  what  it  is  that  the  people  of 
England  and  the  people  of  America  in  great  political  periods 
have  solemnly  declared  their  rights  and  obligations.  We 
must  study  the  periods  of  a  vigorous  development  of  liberty, 
and  we  must  weigh  Magna  Charta,  the  Petition  of  Right,  and 
the  Bill  of  Rights — the  three  statutes  which  Lord  Chatham 
called  the  Bible  of  the  English  Constitution.  We  must  inquire 
into  the  public  common  law  of  England,  and  the  common  law 
as  it  has  developed  itself  on  this  side  of  the  Atlantic;  and 
especially  into  the  leading  cases  of  political  and  constitutional 
importance  that  have  been  decided  in  England  and  the  United 
States.^  We  must  ponder  our  great  federal  pact,  with  the 
contemporaneous  writers  on  this  constitution,  and  the  debates 


*  A  chronological  table  of  the  leading  cases  in  England  and  the  United  States 
by  which  great  constitutional  principles  or  essential  individual  rights  have  been 
settled  and  sown  like  a  spreading,  self-increasing  plant,  would  be  highly  in- 
structive, and  show  how  much  we  owe  to  the  growth  of  liberty,  and  how  much 
this  growth  is  owing  to  the  husbanding  of  practical  cases  in  the  spirit  of 
freedom. 

51 


52 


ON  CIVIL  LIBERTY 


which  led  to  its  adoption  after  the  failure  of  the  original  articles 
of  confederation,  as  well  as  the  special  charters  which  were 
considered  peculiarly  favorable  to  liberty,  such  as  many  of  the 
colonies  possessed,  out  of  which  the  United  States  arose.  We 
must  attentively  study  the  struggles  in  which  the  people  waged 
their  all  to  preserve  their  liberties  or  to  obtain  new  ones,  and 
those  periods  which,  with  reference  to  civil  liberty,  may  be 
called  classical.  We  must  analyze  the  British  and  our  own 
revolutions,  and  compare  them  with  the  political  revolutions 
of  other  nations,  and  we  must  study  not  only  the  outward 
events,  or  the  ultimate  measures,  but  we  must  trace  their 
genesis,  and  ascertain  how  and  why  these  things  came  about, 
and  what  the  principles  were  for  which  the  chief  men  engaged 
in  the  arduous  task  contended.  We  must  mark  what  it  is 
that  those  nations  wish  to  introduce  among  themselves,  that 
are  longing  for  freedom  similar  to  that  which  we  enjoy. 
We  must  test  which  of  the  many  institutions  peculiar  to  our 
tribe  have  proved,  in  the  course  of  time,  as  real  props  of 
freedom,  or  most  prolific  in  shooting  forth  new  branches. 
We  must  read  the  best  writers  on  law,  history,  and  political 
philosophy  with  reference  to  these  subjects,  and  observe  the 
process  of  spreading  liberty.  We  must  note  which  are  the 
most  fruitful  principles  of  Anglican  self-government  in  the 
widening  colonies  north  and  south  of  the  equator ;  and 
examine  our  own  lives  as  citizens  of  the  freest  land,  as  well 
as  the  great  process  of  expansion  of  liberty  with '  ourselves. 
We  ought  clearly  to  bring  before  our  minds  those  guarantees 
which  invariably  are  the  main  points  of  assault  when  the 
attempt  is  made  to  batter  the  ramparts  of  civil  liberty  and 
bring  the  gallant  garrison  to  surrender.  And,  lastl}^,  we 
ought  to  study  the  course  of  despotism  ;  for  the  physiologist 
learns  as  much  from  pathology  as  from  a  body  in  vigorous 
health. 

We  call  this  liberty  Anglican  freedom,  not  because  we  think 
that  it  ought  to  be  restricted  to  the  Anglican  race,  or  will  or 
can  be  so ;  but  simply  because  it  has  been  evolved  first  and 
chiefly  by  this  race,  and  because  we  must  contradistinguish  it 


AND  SELF-GOVERNMENT. 


53 


from  Galilean  liberty,  as  the  sequel  will  show.'  Nor  is  it 
maintained  that  all  that  is  included  in  Anglican  liberty  is  of 
especial  Anglican  origin.  Liberty  is  one  of  the  wreaths  of 
humanity,  and  in  all  liberty  there  must  be  a  large  fund  of  uni- 
versal humanity,  as  all  cultivated  languages  must  agree  in  em- 
bodying the  most  important  principles  of  intellectual  analysis 
and  combination  ;  and  as  Grecian  architecture  does  not  contain 
exclusively  what  the  Greeks  originated,  and  is  not,  on  account 
of  its  very  humanity,  restricted  to  Greece,  still,  we  call  it 
Greek  architecture,  and  we  do  so  with  propriety;  for  it  was  in 
Greece  that  that  column  and  capital  were  developed  which  are 
found  everywhere  with  civilized  man,  have  passed  over  from  a 
pagan  world  into  Christian  civilization,  and  are  seen  wherever 
the  Bible  is  carried. 

Now,  what  we  call  Anglican  liberty,  are  the  guarantees 


'  In  the  year  1S48  I  published,  in  an  American  journal,  a  paper  headed 
Anglican  and  Gallican  Liberty,  in  which  I  indicated  several  views  which  have 
been  further  developed  in  the  present  work.  A  distinguished  German  criminalist 
and  publicist  did  me  the  honor  of  publishing  a  German  translation  of  this  paper, 
in  which,  however,  he  says  that  what  I  have  called  Anglican  liberty  is  more 
generally  called  Germanic  liberty.  This  is  an  error.  I  allow  that  the  original 
Teutonic  spirit  of  individual  independence,  distinguished  as  it  is  from  the  Celtic 
disposition  of  being  swayed  by  masses,  and  from  the  consequent  proclivity 
toward  centralization  in  politics,  religion,  and  literature,  and  a  certain  inability 
to  remain  long  in  the  opposition,  or  to  stand  aloof  of  a  party, — I  allow  that  this 
original  Teutonic  spirit  largely  enters  into  what  I  have  termed  Anglican  liberty, 
but  this  is  a  system  of  civil  liberty  which  has  developed  itself  independent  of  all 
other  Teutonic  nations,  has  been  increasing  while  nearly  all  the  other  Teutonic 
nations  lost  their  liberty,  and  of  which,  unfortunately,  the  Germans,  who  ought 
to  be  supposed  the  most  Germanic  of  the  Germanic  tribes,  have  nothing,  except 
what  may  remain  of  the  late  attempts  at  engrafting  anew  principles  or  guarantees 
of  liberty  on  their  polities,  which  had  become  more  and  more  a  copy  of  French 
centralization.  This  is  not  the  place  to  discuss  the  subject  of  so-called  Germanic 
liberty.  All  that  is  necessary  here  to  "state  is,  that  what  is  called  Anglican 
liberty  consists,  as  was  said  before,  in  a  body  of  guarantees  which,  as  an  entire 
system,  has  been  elaborated  by  the  Anglican  race,  and  is  peculiar  to  them  unless 
imitated  by  others.  Many  a  detail  of  Anglican  liberty  existed  long  ago  in  other 
parts  of  Europe,  and  was  enjoyed  at  times  in  a  higher  degree  than  by  the  Eng- 
lish at  that  period.  But  it  withered  or  ran  wild,  and  never  became  a  part  of  a 
constitutional  organism.  What  has  become  of  the  Aragonese  Justicia  or  chief 
justice  ?     What  of  the  Hungarian  excessive  self-government  of  the  county  ? 


54 


ON  CIVIL  LIBERTY 


which  our  race  has  elaborated,  as  guarantees  of  those  rights 
which  experience  has  shown  to  be  most  exposed  to  the  danger 
of  attack  by  the  strongest  power  in  the  state,  namely,  the 
executive,  or  as  most  important  to  a  frame  of  government 
which  will  be  least  liable  to  generate  these  dangers,  and  also 
most  important  to  the  essential  yet  weaker  branches  of  govern- 
ment. It  consists  in  the  civil  guarantees  of  those  principles 
which  are  most  favorable  to  a  manly  individual  independence 
and  ungrudged  enjoyment  of  individual  humanity ;  and  those 
guarantees  which  insure  the  people,  meaning  the  totality  of  the 
individuals  as  a  unit,  or  the  nation,  against  being  driven  from 
the  pursuit  of  those  high  aims  which  have  been  assigned  to  it 
by  Providence  as  a  nation,  or  as  a  united  people.  Where  the 
one  or  the  other  is  omitted,  or  exclusively  pursued,  there  is  no 
full  liberty.  If  the  word  people  be  taken  as  never  meaning 
anything  else  than  a  unit,  a  widely  extended  and  vigorous 
action  of  that  unit  may  exist  indeed — blinding  ambition  may 
be  enjoyed,  but  it  is  no  liberty ;  if,  on  the  other  hand,  the 
term  people  is  never  taken  in  any  other  sense  than  a  mere 
term  of  brevity,  and  for  the  impossible  enumeration  of  all  in- 
dividuals, without  inherent  connection,  the  consequence  must 
be  a  sejunctive  egotism  which  loses  the  very  power  of  protect- 
ing the  individual  rights  and  liberties. 

What  is  guarantee  for  one  is  check  to  the  other,  and  if 
liberty  consists  in  mutual  guaranteeing  of  certain  rights  of 
actions  and  endeavors,  it  is  clear  that,  correspondingly,  it 
consists  in  certain  mutual  checking,  which,  again,  cannot  exist 
without  corresponding  mutual  toleration.  We  find  therefore, 
in  history,  that  no  people  who  have  not  fairly  learned  to  bear 
with  one  another  can  enjoy  liberty.  The  absence  of  tolera- 
tion is  the  stigma  of  absolutisms  the  establishment  of  "  the 
opposition"  is  the  glory  of  freedom.  Freedom  allows  of 
variety ;  the  tyrant,  whether  one  or  a  multitude,  calls  heretic 
at  every  one  who  thinks  or  feels  differently.^ 


'  Bunsen,  in  his  Signs  of  the  Times,  calls  mutual  toleration  the  true  evidence 
of  a  firm  Christian  faith  and  the  only  valid  evidence  before  God  and  men. 
He  speaks  of  religion ;  but  the  remark,  with  proper  modification,  is  applicable 


AND  SELF-GOVERNMENT. 


55 


These  guarantees,  then,  as  we  acknowledge  them  in  the 
period  of  civil  development  in  which  we  live,  and  as  far  as  they 
are  common  to  the  whole  Anglican  race,  and,  if  of  a  more 
general  character,  are  still  inseparably  interwoven  with  what 
is  peculiar  to  the  race,  we  call  Anglican  liberty.  These 
guarantees  and  checks  I  now  proceed  to  enumerate. 


in  all  spheres.  Strong  conviction  of  right  and  truth  and  reality  early  rises  to 
respectful  toleration — a  generous  acknowledgment  of  the  rights  as  well  as  the 
opinions  of  others.  Feebleness  of  conviction  or  consciousness  of  feebleness 
makes  tyrannical  and  vindictive.  And,  let  us  add,  this  is  one  of  the  many  points 
where  true  liberty  and  gentlemanliness  meet  in  requirements  and  effects. 


56  ON  CIVIL  LIBERTY 


CHAPTER   VI. 

NATIONAL    INDEPENDENCE. PERSONAL   LIBERTY. 

I.  It  is  impossible  to  imagine  liberty  in  its  fulness,  if  the 
people  as  a  totality,  the  country,  the  nation,  whatever  name 
may  be  preferred,  or  its  government,  is  not  independent  of 
foreign  interference.  The  country  must  have  what  the  Greeks 
called  autonomy.  This  implies  that  the  country  must  have 
the  right,  and,  of  course,  the  power,  of  establishing  that  govern- 
ment which  it  considers  best,  unexposed  to  interference  from 
without  or  pressure  from  above.  No  foreigner  must  dictate ; 
no  extra-governmental  principle,  no  divine  right  or  "  principle 
of  legitimacy,"  must  act  in  the  choice  and  foundation  of  the 
government ;  no  claim  superior  to  that  of  the  people's,  that  is, 
superior  to  national  sovereignty,  must  be  allowed.^  This  inde- 
pendence or  national  self-government  further  implies  that,  the 
civil  government  of  free  choice  or  free  acquiescence  being 
established,  no  influence  from  without,  besides  that  of  freely 
acknowledged  justice,  fairness,  and  morality,  must  be  admitted. 
There  must  then  be  the  requisite  strength  to  resist  when  neces- 
sary. While  the  author  is  setting  down  these  remarks,  the  news 
is  reaching  us  of  the  manly  declaration  made  in  the  British  Com- 
mons, by  the  minister  of  foreign  affairs.  Lord  Palmerston,  that 
the  united  calls  of  all  the  continental  powers  would  be  utterly 
insufficient  to  give  up  or  to  drive  from  the  British  territory 
those  political  exiles  who  have  sought  an  asylum  on  English 
soil,  and  of  the  ready  support  given  by  the  press  to  the  spokes- 
man of  the  nation.  Even  the  French,  so  far  as  they  are 
allowed  at  the  present  untoward  conjuncture  to  express  them- 
selves, applaud  this  declaration  as  a  proof  of  British  freedom. 


Political  Ethics,  chapter  on  Sovereignty. 


AA'D  SELF- G O I  'ERXMENT. 


57 


The  Helvetic  Cantons,  on  the  other  hand,  are  forced  to  yield 
to  the  demands  even  of  an  Austrian  government;  and  the 
worried  Republic  of  Switzerland,  so  far  as  this  goes,  cannot  be 
said  to  be  free.  The  history  of  the  nineteenth  century,  but 
especially  that  of  our  own  age,  is  full  of  instances  of  inter- 
ference with  the  autonomy  of  nations  or  states.  Italy,  Ger- 
many, especially  Hessia ;  Spain,  Hungary,  furnish  numerous 
instances.  Cases  may  occur,  indeed,  in  which  foreign  inter- 
ference becomes  imperative.  All  we  can  then  say  is,  that  the 
people's  liberty  so  far  is  gone,  and  must  be  recovered.  No 
one  will  maintain  that  interference  with  Turkish  affairs  at  the 
present  time  is  wrong  in  those  powers  who  resist  Russian  in- 
fluence in  that  quarter,  but  no  one  will  say  either  that  Turkey 
enjoys  full  autonomy.  The  very  existence  of  Turkey  depends 
upon  foreign  sufferance. 

Since  the  preceding  paragraph  was  written,  historical  illus- 
trations have  occurred,  too  important  to  be  appended  in  a  note. 
The  same  statesman  who,  as  minister  of  foreign  affairs,  in  the 
year  1853,  made  the  manly  declaration  concerning  political 
fugitives,  allowed  himself,  as  prime  minister,  in  the  year  1858, 
to  propose  a  law  in  the  House  of  Commons,  at  the  instigation 
of  the  emperor  of  the  French,  by  which  the  fomenting  of  con- 
spiracies in  England  against  foreign  princes  should  be  visited 
with  a  higher  punishment,  or  be  made  punishable  if  it  was 
not  already  so.  The  English  Commons  indignantly  rejected 
such  a  bill  proposed  at  that  very  time ;  the  premier  lost  his 
place,  and  from  that  historical  jury-box  of  Middlesex  proceeded 
a  verdict  of  not  guilty  when  a  Frenchman  residing  in  England 
was  tried  for  having  been  an  accessory  before  the  fact,  of  Orsini, 
who  had  attempted  to  assassinate  Napoleon  HI.  The  verdict 
w^as  plainly  on  the  ground  that  Englishmen  would  not  be 
dictated  to  in  their  legislation  by  a  despotic  foreign  govern- 
ment, and  as  such  was  hailed  with  joy  by  every  man  on  the 
European  continent  who  wishes  well  to  liberty.'      It  was  a 


'  The  case  is  The  Queen  vs.  Bernard.    [It  is,  however,  in  itself  right  to  punish 
cjnspiracies  against  foreign  powers,  when  their  base  of  operations  is  within  our 


58  ON  CIVIL  LIBERTY 

similar  spirit,  no  doubt,  which  lately  caused  many  Americans  to 
take  so  warm  a  part  against  the  reported  attempts  of  English 
vessels  to  search  American  traders. 

On  the  other  hand,  it  must  be  remembered  that  this  un- 
stinted autonomy  is  greatly  endangered  at  home  by  interfering 
with  the  domestic  affairs  of  foreigners.  The  opinion,  there- 
fore, urged  by  Washington,  that  we  should  keep  ourselves 
aloof  from  foreign  politics,  is  of  far  greater  weight  than  those 
believe  who  take  it  merely  with  reference  to  foreign  alliances 
and  ensuing  wars.  The  interference  need  not  necessarily 
proceed  from  government.  Petitions  affecting  foreign  public 
measures  or  institutions,  and  coming  from  large  bodies,  or 
even  committees  sent  to  express  the  approval  of  a  foreign 
government,  of  which  we  have  had  a  recent  and  most  remark- 
able instance,^  are  reprehensible  on  the  same  ground. 


territory,  because  they  are  crimes  committed  on  our  soil,  over  which  no  other 
state  has  control,  and  also  because  they  may  involve  us  in  unpleasant  relations 
with  foreigners.  But  in  the  case  mentioned  in  the  text  the  demand  for  new 
legislation  was  made  in  the  spirit  of  intimidation. — The  English  claim  to  search 
our  vessels  in  1858  was  dictated  by  the  desire  to  ascertain  whether  a  given  vessel 
was  really  of  foreign  nationality,  or  an  English  vessel  under  false  colors.] 

'  The  address  and  declaration  of  four  thousand  British  merchants,  presented  in 
the  month  of  April,  1853,  to  the  emperor  of  the  French,  will  forever  remain 
a  striking  proof  of  British  liberty;  for  in  every  other  European  country  the 
government  would  have  imprisoned  every  signer,  if,  indeed,  the  police  had  not 
nipped  the  petition  in  the  bud  ;  and  it  will  also  forever  remain  a  testimony  how 
far  people  can  forget  themselves  and  their  national  character  when  funds  are  be- 
lieved to  be  endangered,  or  capital  is  desired  to  be  placed  advantageously.  But 
I  have  alluded  to  it  in  the  text  as  an  instance  only  of  popular  interference  with 
foreign  governments,  doubtless  the  most  remarkable  instance  of  the  kind  on 
record.  Whether  the  whole  proceeding  was  "not  far  short  of  high  treason,"  as 
Lord  Campbell  stigmatized  it  in  the  House  of  Lords,  may  be  left  undecided.  It 
certainly  would  have  been  treated  as  such  during  some  periods  of  English 
history,  and  must  be  treated  by  all  right-minded  men  of  the  present  period  as  a 
most  unworthy  procedure. 

To  this  must  now  be  added  the  record  of  the  tone  which  pervaded  the  address 
of  the  lord  mayor  and  aldermen  of  London  to  Count  Walewski,  French  Ambas- 
sador, in  the  early  part  of  the  year  1858,  and  the  manner  in  which  it  was  re- 
ceived, when  Orsini  had  attempted  to  assassinate  the  count's  master  and  cousin, 
having  obtained  his  explosive  weapons  in  England.  The  reply  of  the  ambassa- 
dor was  submitted  to,  although  rising  to  such  a  degree   of  impertinence   that 


AND  SELF-  G  0  VERNMENT. 


59 


It  is  one  of  the  reasons  why  a  broadcast  liberty  and  national 
development  was  so  difficult  in  the  middle  ages,  that  the  pope, 
in  the  times  of  his  highest  power,  could  interfere  with  the 
autonomy  of  states.  I  do  not  discuss  here  whether  this  was 
not  salutary  at  times.  Gregory  VII.  was  a  great,  and,  possi- 
bly, a  necessary  man ;  but  where  civil  liberty  is  the  object,  as  it 
is  now  with  civilized  nations,  this  medieval  interference  of  the 
pope  would  be  an  abridgment  of  it,  just  as  much  as  the  Aus- 
trian or  French  influence  in  the  States  of  the  Church  is  an 
abridgment  of  their  independence  at  present. 

It  is  a  remarkable  feature  in  the  history  of  England,  that 
even  in  her  most  catholic  times  the  people  were  more  jealous 
of  papal  interference  by  legates  or  other  means,  than  any 
other  nation,  unless  we  except  the  Germans  when  their  em- 
perors were  in  open  war  with  the  popes.  This  was,  however, 
transitory,  while  in  England  intercourse  with  the  papal  see 
was  legally  restricted  and  actually  made  penal. 

2.  Civil  liberty  requires  firm  guarantees  of  individual 
liberty,  and  among  these  there  is'  none  more  important  than 
the  guarantee  of  personal  liberty,  or  the  great  habeas  corpus 
principle,  and  the  prohibition  of  "general  warrants"  of  arrest 
of  persons. 

To  protect  the  individual  against  interference  with  pei- 
sonal  liberty  by  the  power-holder  is  one  of  the  elementary 
requisites  of  all  freedom,  and  one  of  the  most  difficult  problems 
to  be  solved  in  practical  politics.  If  any  one  could  doubt  the 
difficulty,  history  would  soon  convince  him  of  the  fact.  The 
English  and  Americans  safely  guard  themselves  against  illegal 
arrest ;  but  a  long  and  ardent  struggle  in  England  was  neces- 
sary to  obtain  this  simple  element,  and  the  ramparts  around 
personal  liberty,  now  happily  existing,  would  soon  be  disre- 
garded, should  the  people,  by  a  real  prava  negligentia  malo- 
rum,  ever  lose  sight  of  this  primary  requisite. 

The  means  by  which  Anglican  liberty  secures  personal 
liberty  are  threefold :  the  principle  that  every  man's  house  is 


it  was  necessary,  at  a  later  period,  diplomatically  to  explain  and  partially  to 
unsay  it. 


6o  ON  CIVIL  LIBERTY 

his  castle,  the  prohibition  of  general  warrants,  and  the  habeas 
corpus  act. 

Every  man's  house  is  his  castle.  It  is  a  principle  evolved 
by  the  common  law  of  the  land  itself,  and  is  exhibited  in  a  yet 
stronger  light  in  the  Latin  version,  which  is,  Domus  sua  cuique 
est  tutissimum  refugium,  and  Nemo  de  domo  sua  extrahi  debet, 
which  led  the  great  Chatham,  when  speaking  on  general  war- 
rants, to  pronounce  that  passage  with  which  now  every  English 
and  American  school-boy  has  become  familiar  through  his 
Reader.  "  Every  man's  house,"  he  said,  "  is  called  his  castle. 
Why  ?  Because  it  is  surrounded  by  a  moat,  or  defended  by  a 
wall  ?  No.  It  may  be  a  straw-built  hut ;  the  wind  may  whistle 
around  it ;  the  rain  may  enter  it,  but  the  king  cannot."  ^ 

Accordingly,  no  man's  house  can  be  forcibly  opened,  or  he 
or  his  goods  be  carried  away  after  it  has  thus  been  forced,  ex- 
cept in  cases  of  felony,  and  then  the  sheriff  must  be  furnished 
with  a  warrant,  and  take  great  care  lest  he  commit  a  trespass. 
This  principle  is  jealously  insisted  upon.  It  has  been  but 
recently  decided  in  England,  that  although  a  house  may  have 
been  unlawfully  erected  on  a  common,  and  every  injured  com- 
moner may  pull  it  down,  he  is  nevertheless  not  justified  in 
doing  so  if  there  are  actually  people  in  it. 

There  have  been  nations,  indeed,  enjoying  a  high  degree  of 
liberty,  without  this  law  maxim ;  but  the  question  in  this  place 
is  even  less  about  the  decided  advantages  arising  to  freemen 
from  the  existence  of  this  principle,  than  about  the  sturdiness 
of  the  law  and  its  independent  development,  that  could  evolve 


'  In  many  countries,  and  even  among  hardly  civilized  tribes,  it  has  been  a  rule 
that  no  one  should  enter  a  man's  house  without  the  consent  of  the  owner. 
Missionaries  tell  us  that  the  Yarriba  people  in  Central  Africa  do  not  allow  their 
king  to  enter  a  house,  even  to  arrest  a  criminal,  without  the  consent  of  the  head 
of  the  family.  So  we  are  very  often  told  that  the  trial  by  jury  was  known  before 
England  had  its  present  name ;  but  the  question  of  importance  is,  how  far  a 
principle  is  developed,  how  securely  it  is  guaranteed,  how  essential  a  part  of  a 
general  system  it  is,  and  how  strong  it  is  to  resist  when  public  power  should 
choose  to  interfere  with  it.  The  Chinese  have  no  censorship,  but  this  absence  of 
censorship  is  not  liberty  of  the  press.  The  Romans  cared  very  little  about  the 
religion  of  their  subjects,  (so  that  they  were  not  Christians,)  but  this  was  not  con- 
stitutional toleration  or  freedom  of  worship. 


AND  SELF-GO  VERXMENT.  6 1 

and  establish  this  bold  maxim.  It  must  be  a  manly  race  of 
freedom-loving  people,  whose  own  common  law  could  deposit 
such  fruitful  soil.  For  let  it  be  observed  that  this  sterling 
maxim  was  not  established,  and  is  not  maintained,.by  a  dis- 
junctive or  a  law-defying  race.  The  Mainots  considered  their 
Lacedaemonian  mountain  fastnesses  as  their  castles  too,  during 
the  whole  Turkish  reign  in  Greece ;  the  feudal  baron  braved 
authority  and  law  in  his  castle ;  the  Mino-tze'  have  never  been 
subdued  by  the  Tartar  dynasty  of  China,  and  defy  the  govern- 
ment in  their  mountain  fastnesses  to  this  day,  much  as  the 
Highlanders  of  Scotland  did  before  the  battle  of  Culloden  ; 
but  the  English  maxim  was  settled  by  a  highly  conjunctive,  a 
nationalized  people,  and  at  the  same  time  when  law  and  general 
government  was  extending  more  and  more  over  the  land.  It  is 
insisted  on  in  the  most  crowded  city  the  world  has  ever  seen, 
with  the  same  jealousy  as  in  a  lonely  mountain  dwelling ;  it  is 
carried  out,  not  by  retainers  and  in  a  state  of  war  made  per- 
manent, as  Essex  tried  to  do  when  he  was  arrested,  but  by 
the  law,  which  itself  has  given  birth  to  it.  The  law  itself 
says  :  Be  a  man,  thou  shalt  be  sovereign  in  thy  house.  It  is 
this  spirit  which  brought  forth  the  maxim,  and  the  spirit  which 
)t  necessarily  nourishes,  that  makes  it  important. 

It  is  its  direct  antagonism  to  a  mere  police  government,  its 
bold  acknowledgment  of  individual  security  opposite  to  gov- 
ernment, it  is  its  close  relationship  to  self-government,  which 
give  so  much  dignity  to  this  guarantee.  To  see  its  value,  we 
need  only  throw  a  glance  at  the  continental  police,  how  it 
enters,  at  night  or  in  the  day,  any  house  or  room,  breaks  open 
any  drawer,  seizes  papers  or  anything  it  deems  fit,  without  any 
other  warrant  than  the  police  hat,  coat,  and  button. 

Nor  must  we  believe  that  the  maxim  is  preserved  as  a  piece 
of  constitutional  virtu.  As  late  as  the  month  of  June,  1853, 
a  bill  was  before  the  House  of  Commons,  proposing  some 
guarantee  against  property  of  nuns  and  monks  being  too 
easily   withdrawn    from    relations,    and   that    certain    officers 


•  In  the  piovince  of  Kouang-Si,  containing  mountainous  regions. 


62  ON  CIVIL  LIBERTY 

should  have  the  right  to  enter  nunneries,  from  eight  A.m.  to 
eight  o'clock  p.m.,  provided  there  was  strong  suspicion  that 
an  inmate  was  retained  against  her  will.  The  leading  minister 
of  the  cFOwn  in  the  Commons,  Lord  John  Russell,  opposed 
the  bill,  and  said :  "  Pass  this  bill,  and  where  will  be  the 
boasted  safety  of  our  houses?  It  would  establish  general 
tyranny," 

The  prohibition  of  "general  warrants."  The  warrant  is 
the  paper  which  justifies  the  arresting  person  to  commit  so 
grave  an  act  as  depriving  a  citizen,  or  alien,  of  personal  liberty. 
It  is  important,  therefore,  to  know  who  has  the  right  to  issue 
such  warrants,  against  whom  it  may  be  done,  and  how  it  must 
be  done,  in  order  to  protect  the  individual  against  arbitrary 
police  measures.  The  Anglican  race  has  been  so  exact  and 
minute  regarding  this  subject,  that  the  whole  theory  of  the 
warrant  may  be  said  to  be  peculiarly  Anglican,  and  a  great 
self-grown  institution.  "A  warrant,"  the  books  say,  "to  de- 
prive a  citizen  of  his  personal  liberty  should  be  in  writing, 
and  ought  to  show  the  authority  of  the  person  who  makes  it, 
the  act  which  is  authorized  to  be  done,  the  name  or  descrip- 
tion of  the  party  who  is  authorized  to  execute  it,  and  of  the 
party  against  whom  it  is  made ;  and,  in  criminal  cases,  the 
grounds  upon  which  it  is  made."  The  warrant  should  name 
the  person  against  whom  it  is  directed ;  if  it  does  not,  it  is 
called  a  general  warrant,  and  Anglican  liberty  does  not  alloM' 
it*  Where  it  is  allowed  there  is  police  government,  but  not 
the  government  for  freemen.  It  is  necessary  that  the  person 
who  executes  the  warrant  be  named  in  it.  Otherwise  the  in- 
jured citizen,  in  case  of  illegal  arrest,  would  not  kno^v  whom 


'  A  warrant  to  apprehend  all  persons  suspected,  or  all  persons  guilty,  etc.  etc., 
is  illegal.  The  person  against  whom  the  warrant  runs  ought  to  be  pointed  out. 
The  law  on  this  momentous  subject  was  laid  down  by  Lord  Mansfield  in  the 
case  of  Money  vs.  Leach,  3  Burrow's  Rep.  1742,  where  the  "general  warrant" 
which  had  been  in  use  since  the  revolution,  directing  the  officers  to  apprehend 
the  "  authors,  printers,  and  publishers"  of  the  famous  No.  45  of  the  North 
Briton,  was  held  to  be  illegal  and  void.  [Comp.  May,  Constit.  Hist.,  ii.  chap. 
II.] 


AND  SELF-GOVERNMENT.  63 

he  should  make  responsible ;  but  if  the  person  be  named,  he 
is  answerable,  according  to  the  Anglican  principle  that  every 
officer  remains  answerable  for  the  legality  of  all  his  acts,  no 
matter  who  directed  them  to  be  done.  Indeed,  we  may  say 
the  special  warrant  is  a  death-blow  to  police  government.' 

The  Constitution  of  the  United  States  demands  that  "  no 
warrants  shall  issue  but  upon  probable  cause,  supported  by 
oath  or  affirmation,  and  particularly  describing  the  place  to  be 
searched,  and  the  persons  or  things  to  be  seized."' 

The  warrant  is  held  to  be  so  important  an  element  of  civil 
liberty,  that  a  defective  warrant  is  considered  by  the  common 
law  of  England  and  America  one  of  the  reasons  which  reduce 
the  killing  of  an  officer  from  murder  to  manslaughter.  The 
reader  will  see  this  from  the  following  passage,  which  I  copy 
from  a  work  of  authority  both  here  and  in  England.  I  give 
the  passage  entire,  because  it  relates  wholly  to  individual  lib- 
erty, and  I  shall  have  to  recur  to  it.3   The  learned  jurist  says : 

"Though  the  killing  of  an  officer  of  justice,  while  in  the 
regular  execution  of  his  duty,  knowing  him  to  be  an  officer, 
and  with  intent  to  resist  him  in  such  exercise  of  duty,  is  mur- 
der, the  law  in  that  case  implying  malice,  yet  where  the 
process  is  defective  or  illegal,  or  is  executed  in  an  illegal 
manner,  the  killing  is  only  manslaughter,  unless  circumstances 
appear,  to  show  express  malice;  and  then  it  is  murder.  Thus, 
the  killing  will  be  reduced  to  manslaughter,  if  it  be  shown  in 
evidence  that  it  was  done  in  the  act  of  protecting  the  slayer 
against  an  arrest  by  an  officer  acting  beyond  the  limits  of  his 
precinct ;  or,  by  an  assistant,  not  in  the  presence  of  the  officer 
or,  by  virtue  of  a  warrant  essentially  defective  in  describing 

*  [For  arrests  which  officers  or  even  private  persons  are  allowed  by  English 
law  to  make  without  warrant,  see  Blackstone's  Com.,  iv.  chap.  21,  pp.  292,  293, 
and  the  notes  of  the  annotators  on  his  text.] 

=  The  reader  will  find  a  copy  of  the  Constitution  of  the  United  States  in  the 
Appendix. 

3  This  is  section  123  of  vol.  iii.  of  Dr.  Greenleaf  on  Evidence,  which  I  have 
copied  by  the  permission  of  my  esteemed  and  distinguished  friend.  I  have  left 
out  all  the  legal  references.  The  professional  lawyer  is  acquainted  with  the  book, 
and  the  references  would  be  important  to  him  alone. 


64  ON  CIVIL  LIBERTY 

either  the  person  accused,  or  the  offence ;  or,  where  the  party 
had  no  notice,  either  expressly,  or  from  the  circumstances  of 
the  case,  that  a  lawful  arrest  was  intended,  but,  on  the  con- 
trary, honestly  believed  that  his  liberty  was  assailed  without 
any  pretence  of  legal  authority  ;  or,  where  the  arrest  attempted, 
though  for  a  felony,  was  not  only  without  warrant,  but  with- 
out hue  and  cry,  or  fresh  pursuit,  or,  being  for  a  misdemeanor 
only,  was  not  made  flagrante  delicto  ;  or,  where  the  party  was, 
on  any  other  ground,  not  legally  liable  to  be  arrested  or  im- 
prisoned. So,  if  the  arrest,  though  the  party  were  legally 
liable,  was  made  in  violation  of  law,  as,  by  breaking  open  the 
outer  door  or  window  of  the  party's  dwelling-house,  on  civil 
process;  for  such  process  does  not  justify  the  breaking  of  the 
dwelling-house,  to  make  an  original  arrest ;  or,  by  breaking 
the  outer  door  or  window,  on  criminal  process,  without  pre- 
vious notice  given  of  his  business,  with  demand  of  admission, 
or  something  equivalent  thereto,  and  a  refusal." 

The  Habeas  Corpus  Act.  This  famous  act  of  parliament 
was  passed  under  Charles  II.,  and  is  intended  to  insure  to  an 
arrested  person,  whether  by  warrant  or  on  the  spot,  that  at  his 
demand  he  be  brought,  by  the  person  detaining  him,  before  a 
judge,  who  may  liberate  him,  bail  him,  or  remand  him,  no 
matter  at  whose  command  or  for  what  reasons  the  prisoner  is 
detained.  It  allows  of  no  "  administrative  arrests,"  as  extra- 
judicial arrests  are  called  in  France,  or  imprisonment  for 
reasons  of  state.  The  habeas  corpus  act  further  insures  a 
speedy  trial,^  a  trial  by  the  law  of  the  land,  and  by  the  lawful 
court — three  points  of  the  last  importance.  It  moreover 
guarantees  that  the  prisoner  know  for  what  he  is  arrested,  and 
may  properly  prepare  for  trial.  .  The  habeas  corpus  act  did  by 
no  means  first  establish  all  these  principles,  but  numberless 


'  Long  imprisonments  before  trial  are  customary  means  resortefi  to  on  the 
continent  of  Europe  in  order  to  harass  the  su]:>jects.  Guerrazzi  and  other  liberals 
were  sentenced,  in  Tuscany,  on  the  first  of  July,  1853,  after  having  been  im- 
prisoned for  fifty  months  before  ever  being  brought  to  trial.  It  is  useless  to 
mention  more  instances;  for  long  imprisonment  before  trial  is  the  rule  in  abso- 
lute frovernments  whenever  it  suits  them. 


AND  SELF-GOVERNMENT.  65 

attempts  to  secure  them  had  failed,  and  the  act  may  be  con- 
sidered as  the  ultimate  result  of  a  long  struggle  between  law 
and  the  individual  on  the  one  hand,  and  power  on  the  other. 
The  history  of  this  act  is  interesting  and  symptomatic' 

The  Constitution  of  the  United  States  prohibits  the  sus- 
pension of  the  habeas  corpus  act,  "  unless  when,  in  cases  of 
rebellion  or  invasion,  the  public  safety  may  require  it;"  and 
Alexander  Hamilton  says,  in  the  "Federalist:"^  "The  estab- 
lishment of  the  writ  of  habeas  corpus,  the  prohibition  of  ex 
post  facto  laws  and  of  titles  of  nobility,  to  which  we  have  no 
corresponding  provisions  in  our  constitution,"  (therefore  per- 
sonal liberty,  or  protection  and  safety,  supremacy  of  the  law 
and  equality,)  "  are  perhaps  greater  securities  to  liberty  than 
any  it  contains  ;"  and,  with  reference  to  the  first  two,  he  justly 
adds  the  words  of  "  the  judicious  Blackstone."^ 

All  our  State  Constitutions  have  adopted  these  important 
principles.  The  very  opposite  of  this  guarantee  was  the 
"  lettre  de  cachet,"  or  is  the  arbitrary  imprisonment  at  pres- 
ent in  France. 

A  witness  of  singular  weight,  as  to  the  essential  importance 
of  Anglican  personal  liberty,  must  not  be  omitted  here.  The 
emperor  Napoleon  III.,  who,  after  Orsini's  attempt  to  assassi- 
nate him,  obtained  the  "  law  of  suspects,"  according  to  which 
the  French  police,  or  administration,  (not  the  courts  of  justice,) 
may  transport  a  "  suspect"  for  seven  years,  wrote,  in  earlier 
days,  with  admiration  of  English  individual  liberty.* 


'  The  Appendix  contains  the  habeas  corpus  act. 

"  Paper  No.  Ixxxiv. 

3  Blackstone's  Commentaries,  vol.  i.  page  136.     Note,  in  the  "  Federalist.  " 

*i  In  1854  a  complete  edition  of  the  emperor's  works  was  published.  In  that 
edition  was  a  chapter  headed  De  la  Liberty  individuelle  en  Angleterre.  In  it 
are  the  following  passages  : 

"No  inhabitant  of  Great  Britain  (excepting  convicts)  can  be  expelled  from 
the  United  Kingdom.  Any  infraction  of  this  clause  (the  habeas  corpus  act) 
would  be  visited  with  the  severest  penalties."  He  remarks  that  we  have  no 
public  prosecutor,  the  attorney-general  interfering  only  on  extraordinary  oc- 
casions ;  and  if  criminals  sometimes  escape  justice,  personal  liberty  is  the  less 
endangered.  "In  England,  authority  is  never  influenced  by  passion;  its  pro- 
ceedings are  always  moderate,  always  legal;"  there  is  "no  violation  of  the  citi- 

5 


ee  ON  CIVIL  LIBERTY 

There  was  in  England,  until  within  a  recent  date,  a  remark- 
able deviation  from  the  principles  of  personal  liberty — the 
impressment.  The  crown  assumed  the  right  to  force  any- 
able-bodied  man  on  board  a  man-of-war,  to  serve  there  as 
sailor.  There  has  always  been  much  doubt  about  this  arro- 
gated privilege  of  the  crown,  and,  generally,  sailors  only  were 
taken,  chiefly  in  times  of  war  and  when  no  hands  would  freely 
enlist.  Every  friend  of  liberty  will  rejoice  that  the  present 
administration  has  taken  in  hand  a  new  plan  of  manning  the 
navy,  by  which  this  blemish  will  be  removed.' 


zen's  domicile,  so  common  in  France;"  family  correspondence  is  inviolate,  and 
no  passports  bar  the  most  perfect  freedom  of  traffic, — "  passports,  the  oppressive 
invention  of  the  Committee  of  Public  Safety,  which  are  an  embarrassment  and 
an  obstacle  to  the  peaceable  citizen,  but  which  are  utterly  powerless  against  those 
who  wish  to  deceive  the  vigilance  of  authority."  A  law  deprived  of  the  general 
support  of  public  opinion  would  be  a  mere  scrap  of  paper. 

"  It  suffices  for  us  to  note  this  fact,  that  in  France,  where  such  jealousy  is  shown 
of  everything  which  touches  equality  and  national  honor,  people  do  not  attach 
themselves  so  religiously  to  personal  liberty.  The  tranquillity  of  the  citizen  may 
be  disturbed,  his  domicile  may  be  violated,  he  may  be  made  to  undergo  for  whole 
months  a  preventive  imprisonment,  personal  guarantees  may  be  despised,  and  a 
few  generous  men  shall  raise  their  voices,  but  public  opinion  will  remain  calm 
and  impassible  as  long  as  no  political  passion  is  awakened.  There  lies  the 
greatest  reason  for  the  violence  of  authority;  it  can  be  arbitrary  because  there  is 
no  curb  to  check  it.  In  England,  on  the  contrary,  political  passions  cease  the 
moment  a  violation  of  common  right  is  committed  ;  and  this,  because  England 
is  a  country  of  legality,  and  France  has  not  yet  become  so ;  because  England  is 
a  country  solidly  constituted,  while  France  struggles  by  turns  for  forty  years  be- 
tween revolutions  and  counter-revolutions,  and  the  sanctity  of  principle  has  yet 
to  be  created  there." 

'  The  plan  has  not  yet  been  published,  but  one  of  the  ministers,  Sir  James 
Graham,  said  in  the  Commons,  in  April,  1853 : 

"  The  first  point  on  which  all  the  authorities  consulted  were  agreed  is,  that 
whatever  measures  are  taken,  must  rely  for  success  on  the  voluntary  acceptance 
of  them  by  the  seamen,  and  that  any  attempt  10  introduce  a  coercive  mode  of 
enlistment  would  be  followed  by  mischievous  consequences  and  failure."  The 
difficult  question  does  not  yet  seem  to  be  wholly  settled  (1859).  It  seems  diffi- 
cult to  obtain  a  sufficient  number  of  seamen  to  man  the  fleet  in  emergencies. 
In  France  seamen  are  drafted,  as  soldiers  are  for  the  army.  [For  the  history  of 
impressment,  for  the  army  as  well  as  for  the  navy,  down  to  i860,  comp.  May, 
u.  s.,  ii.  259  et  seq.  Until  1872  no  law  abolishing  this  practice  was  passed;  but 
the  practice  itself  seems  to  be  in  abeyance.] 


AND  SELF-GOVERNMENT.  67 


CHAPTER    VII. 


BAIL. — PENAL   TRIAL. 


3.  Connected  with  the  guarantees  of  personal  liberty,  treated 
of  in  the  foregoing  chapter,  is  the  bail. 

The  law  of  all  nations  not  wholly  depraved  in  a  political 
point  of  view,  adopts  the  principle  that  a  man  shall  be  held 
innocent  until  proved  by  process  of  law  to  be  otherwise.  In 
fact,  the  very  idea  of  a  trial  implies  as  much.  Theoretically, 
at  least,  this  is  acknowledged  by  all  civilized  nations,  although 
often  the  way  in  which  judicial  affairs  are  conducted,  and  in 
many  countries  the  very  mode  of  trying  itself,  are  practical 
denials  of  the  principle.  But  even  in  the  freest  country  there 
is  this  painful  yet  unavoidable  contradiction,  that  while  we 
hold  every  person  innocent  until  by  lawful  trial  proved  to  be 
guilty,  we  must  arrest  a  person  in  order  to  bring  him  to  a 
penal  trial ;  and,  although  by  the  law  he  is  still  considered 
innocent,  he  must  be  deprived  of  personal  liberty  until  his 
trial  can  take  place,  which  cannot  always  follow  instantly 
upon  the  arrest.  To  mitigate  this  harshness  as  much  as  pos- 
sible, free  nations  guarantee  the  principle  of  bailing  in  all 
cases  in  which  the  loss  of  the  bailed  sum  may  be  considered 
as  a  more  serious  evil  than  the  possible  punishment.  The 
amount  of  bail  must  depend  upon  the  seriousness  of  the  charge, 
and  also  upon  the  means  of  the  charged  person.  If  judges 
were  allowed  to  demand  exorbitant  bail,  they  might  defeat  the 
action  of  this  principle  in  every  practical  case.  It  was  enacted, 
therefore,  in  the  first  year  of  William  and  Mary,'  and  has 
been  adopted  in  all  our  constitutions,  that  no  "  excessive  bail" 
shall  be  required.     The  nature  of  the  case  admits  of  no  more 


*  I  William  and  Mary,  stat.  ii.  c.  2. 


68  ON  CIVIL  LIBERTY 

exact  term;  but,  with  an  impeachment  hanging  over  the  judges 
should  the  principle  thus  solemnly  pronounced  be  disregarded, 
it  has  worked  well  for  the  arrested  person.  Indeed,  there  are 
frequent  cases  in  the  United  States  in  which  this  principle  is 
abused  and  society  is  endangered,  because  persons  are  bailed 
who  are  under  the  heaviest  charges,  and  have  thus  an  oppor- 
tunity of  escape  if  they  know  themselves  guilty.  As  this  can 
take  place  only  with  persons  who  have  large  sums  at  their  dis- 
posal, either  in  their  own  possession  or  in  that  of  their  friends, 
and  as  liberty  demands  first  of  all  the  foundation  of  justice,  it  is 
evident  that  this  abuse  of  bail  works  as  much  against  essential 
liberty  as  the  proper  use  of  bail  guarantees  it.  We  ought, 
ever^'where,  to  return  to  the  principle  of  distinguishing  trans- 
gressions of  the  law  into  bailable  offences  and  offences  for  the 
suspected  commission  of  which  the  judge  can  take  no  bail. 
These  are  especially  those  offences  for  the  punishment  of 
which  no  equivalent  in  money  can  be  imagined — for  instance, 
death  or  imprisonment  for  life, — and  those  offences  which  put 
the  offender  into  the  possession  of  the  sum  required  for  the 
bail. 

It  has  been  objected  to  the  bail  that  it  works  unjustly.  It 
temporarily  deals  with  so  precious  a  thing  as  personal  liberty 
according  to  possession  of  wealth:  but  it  must  be  remembered 
that  the  whole  arrest  before  trial  is  an  evil  of  absolute  neces- 
sity, and  the  more  we  can  limit  it  the  better. 

Liberty  requires  bail,  and  that  it  be  extended  as  far  as 
possible  ;  and  it  requires  likewise  that  it  be  not  extended  to 
all  offences,  and  that  substantial  bail  only  be  accepted. 

4.  Another  guarantee,  of  the  last  importance,  is  a  well- 
secured  penal  trial,  hedged  in  with  an  efficient  protection  of 
the  indicted  person,  the  certainty  of  his  defence,  a  distinct 
indictment  charging  a  distinct  act,  the  duty  of  proving  this 
act  on  the  part  of  government,  and  not  the  duty  of  proving 
innocence  on  the  part  of  the  prisoner,  the  fairness  of  the  trial 
by  peers  of  the  prisoner,  the  soundness  of  the  rules  of  evidence, 
the  publicity  of  the  trial,  the  accusatorial  (and  not  the  inquisi- 
torial) process,  the  certainty  of  the  law  which  is  to  be  applied, 


AND  SELF-GOVERNMENT.  69 

together  with  speed  and  utter  hiipartiality,  and  an  absolute 
verdict.  It  is  moreover  necessary  that  the  preparatory  pro- 
cess be  as  little  vexatious  as  possible. 

When  a  person  is  penally  indicted,  he  individually  forms 
one  party,  and  society,  the  state,  the  government,  forms  the 
other.  It  is  evident  that  unless  very  strong  and  distinct 
guarantees  of  protection  are  given  to  the  former,  that  he  be 
subjected  to  a  fair  trial,  and  that  nothing  be  adjudged  to  him 
but  what  the  law  already  existing  demands  and  allows,  there 
can  be  no  security  against  oppression.  For  government  is  a 
power,  and,  like  every  power  in  existence,  it  is  desirous  of 
carrying  its  point — a  desire  which  increases  in  intensity  the 
greater  the  difficulties  are  which  it  finds  in  its  way. 

Hence  it  is  that  modern  free  nations  ascribe  so  great  an 
importance  to  well-regulated  and  carefully  elaborated  penal 
trials.  Montesquieu,  after  having  given  his  definitions  of  what 
he  calls  philosophical  liberty,  and  of  political  liberty,  which, 
as  we  have  seen,  he  says,  consists  in  security,  continues  thus : 
"  This  security  is  never  more  attacked  than  in  public  and 
private  accusations.  It  is,  therefore,  upon  the  excellence  of 
the  criminal  laws  that  chiefly  the  liberty  of  the  citizen  de- 
pends."' Although  we  consider  this  opinion  far  too  general, 
it  nevertheless  shows  how  great  a  value  Montesquieu  set  on  a 
well-guarded  penal  trial,  and  he  bears  us  out  in  considering  it 
an  essential  element  of  modern  liberty.  The  concluding  words 
of  Mr.  Mittermaier's  work  on  the  Penal  Process  of  England, 
Scotland,  and  the  United  States,  are :  "  It  will  be  more  and 
more  acknowledged  how  true  it  is  that  the  penal  legislation 
is  the  key-stone  of  a  nation's  public  law."^ 

This  passage  of  the  German  criminalist  expresses  the  truth 
more  accurately  than  the  quoted  dictum  of  Montesquieu.  For, 
although  we  consider  the  penal  trial  and  penal  law  in  general 
intimately  connected  with  civil  liberty,  it  is  nevertheless  a  fact 


}  Esprit  des  Lois,  xii.  2  ;  "Of  the  Liberty  of  the  Citizen." 
»  This  comprehensive  and  excellent  work  was  published  in  Germany,  Erlangen, 
1S51. 


70  ON  CIVIL  LIBERTY 

that  a  sound  penal  trial  is  invariably  one  of  the  last  fruits  of 
political  civilization,  partly  because  it  is  one  of  the  most  diffi- 
cult subjects  to  elaborate,  and  because  it  requires  long  expe- 
rience to  find  the  proper  mean  between  a  due  protection  of  the 
indicted  person  and  an  equally  due  protection  of  society;  partly 
because  it  is  one  of  the  most  difficult  things  in  all  spheres  of 
action  to  induce  irritated  power  to  limit  itself,  as  well  as  to 
give  to  an  indicted  person  the  full  practical  benefit  of  the 
theoretic  sentence,  easily  pronounced  like  all  theory,  that  the 
law  holds  every  one  innocent  until  proved  not  to  be  so.  The 
Roman  and  Athenian  penal  trials  were  sadly  deficient.  The 
English  have  allowed  counsel  to  the  penally  indicted  person 
only  within  our  memory,  while  they  had  been  long  allowed  in 
the  United  States.^  The  penal  trial  in  the  Netherlands  was 
imperfect,  when,  nevertheless,  the  Netherlanders  are  allowed 
on  all  hands  to  have  enjoyed  a  high  degree  of  civil  liberty.  It 
is  one  of  the  most  common  facts  in  history  that  a  nation  is 
more  or  less  advancing  in  nearly  all  the  branches  of  civiliza- 
tion, while  the  penal  trial  and  the  whole  penal  law  remains 


'  \_T.e.,  in  cases  of  felony  no  counsel  was  allowed,  unless  upon  collateral  facts, 
or  some  point  of  law ;  and  so  in  cases  of  petty  larceny.  But  when  a  person  was 
indicted  for  high  treason,  he  had,  as  early  as  7  Wm.  III.,  the  pi'ivilege  of  counsel, 
which  was  granted  also  to  persons  impeached  for  the  same  crime  by  a  statute  of 
20  Geo.  III.  In  1836,  by  statute  of  6  and  7  Wm.  IV.,  this  privilege  was  granted 
in  trials  for  felony.  See  Blackst.,  iv.,  chap.  27,  p.  355,  and  May,  u.  s.,  ii.  558.] 
It  must  not  be  forgotten,  however,  that  deficient  as  the  penal  trial  of  England 
without  counsel  for  the  defendant  was,  it  contained  many  guarantees  of  protection, 
especially  publicity,  a  fixed  law  of  evidence,  with  the  exclusion  of  hearsay  evi- 
dence, the  jury  and  the  neutral  position  of  the  judge  in  consequence  of  the  trial 
by  jury,  and  the  strictly  accusatorial  character  of  the  trial,  with  the  most  rigid 
adhesion  to  the  principle  of  trying  a  person  upon  the  indictment  alone,  so  that  the 
judge  could  be,  and  in  later  times  really  had  been,  the  protector  of  the  prisoner. 
Had  the  trial  been  inquisitorial  instead  of  accusatorial,  the  absence  of  counsel  for 
defence  would  have  been  an  enormity.  To  this  enormity  Austria  has  actually 
returned  since  the  beginning  of  this  century.  The  code  promulgated  by  Joseph 
gave  counsel,  or  a  "  defensor,"  to  the  prisoner;  but,  although  the  process  remained 
inquisitorial,  the  defensor  was  again  disallowed.  The  late  revolution  re-estab- 
lished him,  but  whether  he  has  been  discontinued  again  of  late  I  do  not  know. 
Nor  can  it  be  of  very  great  importance  in  a  country  in  which  the  "  state  of  siege" 
and  martial  law  seem  to  be  almost  permanent. 


AND  SELF-GOVERNMENT. 


7t 


almost  stationary  in  its  barbarous  inconsistency.  The  penal 
trial  of  France,  up  to  the  first  revolution,  remained  equally 
shocking  to  the  feelings  of  humanity  and  to  the  laws  of 
logic. 

The  reason  of  this  apparent  inconsistency  is  that,  in  most 
cases,  penal  trials  affect  individuals  who  do  not  belong  to  the 
classes  which  have  the  greatest  influence  upon  legislation. 
This  point  is  e^ecially  important  in  countries  where  the  penal 
trial  is  not  public.  People  never  learn  what  is  going  on  in  the 
houses  of  justice.  Another  and  great  reason  is  that  generally 
lawyers  by  profession  are  far  less  interested  in  the  penal  branch 
of  the  law  than  in  the  civil.  This,  again,  arises  from  the  fact 
that  the  civil  law  is  far  more  varied  and  complicated,  conse- 
quently more  attractive  to  a  judicial  mind,  that  the  civil  cases 
are  far  more  remunerative,  and  form  the  large  bulk  of  the 
administration  of  justice.  How  much  the  difficulty  to  be 
solved  constitutes  the  attraction  for  the  lawyer,  we  may  see 
from  the  fact  that  very  few  professional  lawyers  take  an 
interest  in  the  punishment  itself  A  penal  case  has  attraction 
for  them  so  long  as  it  is  undecided,  but  what  imprisonment 
follows,  if  imprisonment  has  been  awarded,  interests  them 
little.  Very  few  lawyers  have  taken  a  lead  in.  the  reform  of 
criminal  law  and  in  prison  discipline.  Sir  Samuel  Romilly 
always  excepted. 

Among  the  points  which  characterize  a  fair  and  sound  penal 
trial  according  to  our  advancement  in  political  civilization,  we 
would  designate  the  following :  the  person  to  be  tried  must  be 
present  (and,  of  course,  living) ;'  there  must  be  no  intimidation 


'  Penal  trials  of  absent  persons  are  common  in  countries  where  the  principles 
of  the  Roman  law  prevail.  They  are  common  in  France;  and  the  church  has 
even  tried  deceased  persons  for  heresy,  found  them  guilty,  and  confiscated  the 
property  which  had  belonged  to  the  heretic.  The  presence  of  the  indicted  per- 
son at  his  trial  is  a  right  plain  to  every  one  as  soon  as  once  pronounced,  but 
power  acknowledges  it  at  a  late  period  only,  and  always  has  a  tendency  to  depart 
from  it,  whether  this  power  be  a  monarch  or  his  government,  or  an  impassioned 
populace.  Several  of  the  almost  solemn  procedures  of  lynch  law  which  have 
occurred  of  late  in  some  of  our  Western  States,  and  according  to  which  absent 
persons  were  warned  never  to  return  to  tlieir  domicile,  are  instances  in  point. 


72 


ON   CIVIL  LIBERTY 


before  the  trial,  or  attempts  by  artifice  to  induce  the  prisoner 
to  confess, — a  contrivance  which  protects  the  citizen  even 
against  being  placed  too  easily  into  a  state  of  accusation ;  the 
fullest  possible  realization  of  the  principle  that  every  man  is 
held  innocent  until  proved  to  be  otherwise,  and  bail ;  a  total 
discarding  of  the  principle  that  the  more  heinous  the  imputed 
crime  is,  the  less  ought  to  be  the  protection  of  the  prisoner, 
and,  on  the  contrary,  the  adoption  of  the  reverse ;  a  distinct 
indictment,  and  the  acquaintance  of  the  prisoner  with  it,  suffi- 
ciently long  before  the  trial,  to  give  him  time  for  preparing 
the  defence ;  that  no  one  be  held  to  incriminate  himself;  the 
accusatorial  process,  with  jury  and  publicity,  therefore  an  oral 
trial  and  not  a  process  in  writing  ;  counsel  or  defensors  of  the 
prisoner ;  a  distinct  theory  or  law  of  evidence,  and  no  hearsay 
testimony ;  a  verdict  upon  evidence  alone  and  pronouncing 
guilty  or  not  guilty  ;  a  punishment  in  proportion  to  the  offence 
and  in  accordance  with  common  sense  and  justice  ; '  especially 
no  punitory  imprisonment  of  a  sort  that  necessarily  must 
make  the  prisoner  worse  than  he  was  when  he  fell  into  the 
hands  of  government,  nor  cautionary  imprisonment  before 
trial,  which  by  contamination  must  advance  the  prisoner  in  his 
criminality;  and  that  the  punishment  adapt  itself  as  much  as 
possible  to  the  crime  and  criminality  of  the  offender;''  that 
nothing  but  what  the  law  demands  or  allo'ws  to  be  inflicted,^ 


'  The  idea  expressed  by  Dr.  Paley  regarding  this  point  is  revolting.  He  says, 
in  his  Political  Philosophy,  that  we  may  choose  between  two  systems,  the  one 
with  fair  punishments  always  applied,  the  other  with  very  severe  punishments 
occasionally  applied.  He  thus  degrades  penal  law,  from  a  law  founded  above 
all  upon  strict  principles  of  justice,  to  a  mere  matter  of  prudential  expediency, 
putting  it  on  a  level  with  military  decimation. 

=  Lieber's  Popular  Essay  on  Subjects  of  Penal  Law,  and  on  Uninterrupted 
Solitary  Confinement  at  Labor,  etc. ;  Philadelphia,  1838.  I  have  there  treated 
of  this  all-important  subject  at  some  length. 

3  Tiberius  Gracchus  erected  a  temple  in  honor  of  Liberty,  with  a  sum  obtained 
for  fines.  If  the  fines  were  just,  there  was  no  inconsistency  in  thus  making  penal 
justice  build  a  temple  of  freedom,  for  liberty  demands  security  and  order,  and, 
therefore,  penal  justice. 

On  the  other  hand,  what  does  a  citizen  reared  in  Anglican  liberty  feel  when  he 
reads  in  a  simple  newspape    article  in  a  French  provincial  pajier,  in  1S53,  the  fol 


AND  SELF-GOVERNMENT. 


73 


and  that  all  that  the  law  demands  be  inflicted — no  arbitrary- 
injudicious  pardoning,  which  is  a  direct  interference  with  the 
true  government  of  law. 

The  subject  of  pardoning  is  so  important,  especially  in  our 
countiy,  that  I  have  deemed  it  advisable  to  add  a  paper  on 
pardoning,  which  the  reader  will  find  in  the  Appendix. 

Perhaps  there  are  no  points  so  important  in  the  penal  trial 
in  a  free  country,  as  the  principle  that  no  one  shall  be  held  to 
incriminate  himself,  that  the  indictment  as  well  as  the  verdict 


lowing?  "  The  minister  of  general  police  has  just  decided  that  Chapitel,  sen- 
tenced by  the  court  to  six  months'  imprisonment  for  having  been  connected  with 
a  secret  society,  and  Brayet,  sentenced  for  the  same  offence  to  two  months'  im- 
prisonment, shall  be  transported  to  Cayenne  for  ten  years,  after  the  expiration  of 
their  sentence  !" 

The  decree  of  the  eighth  of  December,  1851,  not  a  law,  but  a  mere  dictatorial 
order,  upon  which  ten  years'  transportation  is  added  by  way  of  "rider"  to  a 
few  months'  imprisonment  adjudged  by  the  courts  of  law,  is  this : 

"  Article  l.  Every  individual  placed  under  the  surveillance  of  the  high  police, 
who  shall  be  found  to  have  broken  his  assigned  limits  of  residence,  may  be  trans- 
ported, by  way  of  general  safety,  to  one  of  the  penitentiary  colonies,  at  Cayenne 
or  in  Algeria. 

"The  duration  of  transportation  shall  be  five  years  or  less,  and  ten  years  or 
more."  (We  translate  literally  and  correctly,  whatever  the  reader  may  think  of 
this  sentence,  which  would  be  very  droll,  were  it  not  very  sad.) 

"  Article  2.  The  same  measure  shall  be  applicable  to  individuals  found  to  be 
guilty  of  having  formed  part  of  a  secret  society." 

The  French  of  the  last  sentence  is,  individus  reconnus  cotipahle  d'' avoir  fait 
partic  d'' tine  societe  secrete.  This  reconntts  (found,  acknowledged)  is  of  asinister 
import.  For  the  question  is,  Found  by  whom  ?  Of  course  not  only  by  the 
courts,  for  finding  a  man  guilty  by  process  of  law  is  in  Yxtx\c\\  coiivaincre.  The 
reconnaitre,  therefore,  was  used  in  order  to  include  the  police  or  any  one  else  in 
authority.  So  that  we  arrive  at  this  striking  fact :  The  despot  may  add  an  enor- 
mous punishment  to  a  legal  sentence,  as  in  the  cited  case,  or  he  may  award  it,  or 
rather  the  minister  of  police  under  him  may  do  it,  without  trial,  upon  mere  police 
information.  Two  hundred  years  ago,  the  English  declared  executive  transpor- 
tation beyond  the  seas,  or  deportation,  to  be  an  unwarranted  grievance;  and  here 
we  have  it  again,  no  doubt  in  imitation  of  the  Roman  imperial  times,  (the  saddest 
in  all  history,)  in  the  middle  of  the  nineteenth  century. 

So  far  the  note  as  written  in  1853.  In  1858  Orsini  made  his  attempt  of  assas- 
sinating the  emperor  of  the  French,  when  a  far  more  stringent  law  was  passed, 
and  the  principle  of  "suspicion,"  so  flourishing  as  an  element  of  criminality  in 
the  first  French  revolution,  was  revived. 


74 


ON  CIVIL  LIBERTY 


must  be  definite  and  clear,  and  that  no  hearsay  evidence  be 
admitted.     Certainly  none  are  more  essential. 

A  great  lawyer  and  excellent  man,  Sir  Samuel  Romilly, 
justly  says,  that  if  the  ascertaining  of  truth  and  meting  out  of 
justice  is  the  object  of  the  trial,  no  possible  objection  can  be 
taken  against  it  on  principle.  But  there  is  this  difficulty,  that 
if  judges  themselves  question,  they  become  deeply  interested 
in  the  success  of  their  own  cross-examinations,  they  become 
biased  against  the  prisoner,  should  he  thwart  them,  or  turn 
questions  into  ridicule.  Romilly  makes  this  remark  after 
having  actually  seen  this  result  in  France,  where  it  is  always 
done,  (witness  Mad.  Lafarge's  trial,  or  any  French  trial  of  im- 
portance,) and  certainly  often  with  success.'  Or  let  us  observe 
English  prosecutions  some  centuries  back. 

In  the  inquisitorial  process,  it  is  not  only  done,  but  the  pro- 
cess depends  upon  the  questioning  of  the  prisoner. 

There  are  other  dangers  connected  with  it.  An  accused 
man  cannot  feel  that  perfect  equanimity  of  mind  which  alone 
might  secure  his  answers  against  suspicion.  I  know  from  per- 
sonal experience  how  galling  it  is  to  see  your  most  candid 
answers  rewarded  with  suspicions  and  renewed  questions,  if 
the  subject  is  such  that  you  cannot  possibly  at  once  clear  up 
all  doubts.  It  ought  never  to  be  forgotten  that  the  accused 
person  labors  under  considerable  disadvantages,  merely  from 
the  fact  that  he  is  accused.  Bullying  and  oppressive  judges 
were  common  in  England  when  the  principle  was  not  yet 
settled  that  no  one  shall  be  held  to  incriminate  himself  The 
times  of  the  Stuarts  furnish  us  with  many  instances  of  alterca- 
tions in  the  court,  between  the  judge  and  the  prisoner,  and  of 
judicial  browbeating,  to  the  detriment  of  all  justice. 

The  trial  of  Elizabeth  Gaunt,  the  aged  and  deaf  Baptist 
woman,  who  had  given  a  night's  rest  under  her  roof  to  a 
soldier  of  Monmouth's  dispersed  army,  under  Chief-Justice 
Jones,^  and  was  convicted  of  treason  on  the  sole  testimony  of 


*  Sir  Samuel  Romilly's  Memoirs,  vol   i.  p.  315,  2d  ed.,  London,  1840. 
»  Phillipps's  State  Trials,  vol.  ii.  214,  et  seq.,  and,  indeed,  in  many  parts  of 
the  work. 


AND  SELF-GOVERNMENT.  75 

the  wretch  whom  she  sheltered  that  she  had  knowledge  of  his 
being  a  rebel,  may  serve  as  an  instance. 

It  is,  among  other  reasons,  for  this  very  fact  of  prisoners  on 
trial  being  asked  by  the  French  judge  about  the  fact  at  issue, 
his  whereabouts  at  the  time,  his  previous  life,  and  a  number  of 
things  which  throw  suspicion  on  the  prisoner,  although  uncon- 
nected with  the  question  at  issue,  that  Mr.  Beranger  says,  in 
a  work  of  just  repute:  "We,"  that  is,  the  French,  "have 
contented  ourselves  to  place  a  magnificent  frontispiece  before 
the  ruins  of  despotism ;  a  deceiving  monument,  whose  aspect 
seduces,  but  which  makes  one  freeze  with  horror  when  entered 
Under  liberal  appearances,  with  pompous  words  of  juries 
public  debates,  judicial  independence,  individual  liberty,  we 
are  slowly  led  to  the  abuse  of  all  these  things,  and  the  disre- 
gard of  all  rights ;  an  iron  rod  is  used  with  us,  instead  of  the 
staff  of  justice."' 

There  are  peculiar  reasons  against  examining  the  prisoner 
in  public  trials,  and  many  peculiar  to  the  secret  trial 
Although  it  cannot  be  denied,  that  often  the  questioning  of 
the  prisoner  may  shorten  the  trial  and  lead  to  condign  convic- 
tion, which  otherwise  may  not  be  the  result,  it  is  nevertheless 
right  that  most,  perhaps  all  our  state  constitutions  have  adopted 
this  principle.  It  is  just;  it  is  dignified;  it  is  fair.  The 
government  prosecutes  ;  then  let  it  prove  what  it  charges.  So 
soon  as  this  principle  is  discarded,  we  fall  into  the  dire  error 
of  throwing  the  burden  of  proving  innocence  wholly  or  par- 
tially on  the  prisoner ;  while,  on  the  contrary,  all  the  burden 
ought  to  lie  on  the  government,  with  all  its  power,  to  prove 
the  charged  facts.  Proving  an  offence  and  fastening  it  on  the 
offender,  is  one  important  point  in  the  penal  trial ;  but  the 
method  how  it  is  done  is  of  equal  importance.  The  Turkish 
cadi  acknowledges  the  first  point  only ;  yet  what  I  have  stated 
is  not  only  true  with  reference  to  the  jural  society,  it  is  even 
true  in  the  family  and  the  school. 

It  is  an  interesting  fact  for  the  political  philosopher  that 


*  Beranger,  De  la  Justice  Criminelle  de  France,  Paris,  1818,  page  2. 


76  ON  CIVIL  LIBERTY 

while  the  AngHcan  race  thus  insists  on  the  principle  of  non- 
self-incrimination,  the  whole  Chinese  code  for  that  people 
under  a  systematic  mandarinism  is  pervaded  even  by  the  prin- 
ciple of  self-accusation  for  all,  but  especially  for  the  mandarins. 

The  principle  that  on  government  lies  the  burden  of  proving 
the  guilt,  leads  consistently  to  the  other  principle,  that  the 
verdict  must  be  definite  and  absolute.  Hence  these  two  im- 
portant facts :  The  verdict  must  be  guilty  or  not  guilty,  and 
no  absolutio  ab  instantia,  as  it  is  called  in  some  countries  of 
the  European  continent ;  that  is  to  say,  no  verdict  or  decision 
which  says.  According  to  the  present  trial  we  cannot  find  you 
guilty,  but  there  is  strong  suspicion,  and  we  may  take  you  up 
another  time ;  *  nor  any  "  not  proven,"  as  the  Scottish  trial 
admits  of,  ought  to  be  permitted.  "  Not  proven,"  does  not 
indeed  allow  a  second  trial,  but  it  expresses :  You  are  free, 
although  we  have  very  strong  suspicion.  Secondly,  the  main 
principle  leads  to  the  fact  that  no  man  ought  to  be  tried  twice 
for  the  same  offence.  This  is  logical,  and  is  necessary  for  the 
security  of  the  individual.  A  person  might  otherwise  be 
harassed  by  the  government  until  ruined.  Repeated  trials  for 
charges  which  the  government  knows  very  well  to  be  un- 
founded, are  a  common  means  resorted  to  by  despotic  execu- 
tives. Frequently  such  procedures  have  led  the  persecuted 
individual  to  compound  with  government  rather  than  lose  all 
his  substance. 

The  Anglican  race,  therefore,  justly  makes  it  an  elementaiy 
principle  of  its  constitutional  law,  that  "  no  man  shall  be  tried 
twice  for  the  same  offence." 

I  have  said  that  a  fair  trial  for  freemen  requires  that  the 
preparatory  steps  for  the  trial  be  as  little  vexatious  as  possible. 
They  must  also  acknowledge  the  principle  of  non-incrimination. 
This  is  disregarded  on  the  whole  of  the  European  continent. 
The  free  range  of  police  power,  the  mean  tricks  resorted  to  by 
the  "  instructing"  judge  or  officer,  before  the  trial,  in  order  to 


'  The  reader  will  find  in  Appendix  III.  a  paper  on  the  subject  of  some  conti- 
nental trials,  and  the  admission  of  half  and  quarter  proof  and  proportional 
punishment 


AND  SELF-GOVERNMENT. 


77 


bring  the  prisoner  to  confession,  are  almost  inconceivable,* 
and  they  are  the  worse,  because  applied  before  the  trial,  when 
the  prisoner  is  not  surrounded  by  those  protections  which  the 
trial  itself  grants.  With  reference  to  this  point,  and  in  order 
to  modify  what  I  have  stated  regarding  Greek  penal  trials,  I 
wish  to  mention  the  interesting  fact  that  "  the  prosecutor,  in 
Athens,  who  failed  to  make  good  his  charge,  incurred  certain 
penalties,  unless  he  obtained  at  least  one-fifth  of  the  votes  in 
his  favor.  In  public  suits,  he  forfeited  one  thousand  drachmae 
to  the  state,  and  could  never  again  institute  a  similar  suit. 
The  same  punishment  was  incurred  if  he  declined  to  proceed 
with  the  case.  In  private  suits,  he  paid  the  defendant  one-sixth 
of  the  amount  of  the  disputed  property,  as  a  compensation  for 
the  inconvenience  he  had  suffered  in  person  or  character."  ^ 

Sir  Samuel  Romilly  had  the  intention  of  proposing,  in  a 
similar  spirit,  a  bill  by  which  an  acquitted  prisoner,  having 
been  prosecuted  for  felony,  should  be  compensated  by  the 
county,  at  the  discretion  of  the  court,  for  loss  of  time  and  the 
many  evils  endured.  Indeed,  he  thought  that  far  more  ought 
to  be  done.3  Leave  was  given  to  bring  in  the  compensation 
bill,  but  it  was  afterwards  withdrawn.  It  is  evident  that  the 
great  difficulty  would  lie  in  the  fact  that  the  discretion  of  the 
judge  would  establish  at  once  a  distinction  between  the  ver- 
dicts, similar  to  that  produced  by  the  Scottish  "not  guilty"  and 
"  not  proven."  To  compensate,  however,  all  acquitted  persons 
would  be  very  mischievous,  if  we  consider  how  many  persons 
are  acquitted  who  nevertheless  are  guilty.  Indeed,  it  might 
well  be  asked  whether  the  fear  of  burdening  the  county  with 


'  This  may  be  amply  seen  in  the  reports  on  French  trials,  and,  among  other 
works,  in  Feuerbach'^ Collection  of  German  Criminal  Trials. 

=  See  K.  F.  Hermann,  Gr.  Staatsalterth.,  ^  144. 

3  Memoirs  of  the  Life  of  Sir  Samuel  Romilly,  2d  ed.,  London,  1840,  vol.  ii 
p.  235.  Strangely  enough,  there  is  an  English  law,  25  George  IL,  ch.  36,  accord 
ing  to  which  prosecutors  are  to  have  the  expenses  of  their  prosecution  reim 
bursed,  and  a  compensation  afforded  them  for  their  trouble  and  loss  of  time, 
This  is  evidently  to  induce  people  freely  to  prosecute;  but  no  guarantee  is  given 
on  the  other  hand  against  undue  prosecution,  and  a  compensation  for  the  trouble  ' 
and  loss  of  time  of  the  acquitted  person. 


78  ON  CIVIL  LIBERTY 

the  payment  of  the  compensation  would  not,  in  some  cases, 
induce  the  jury  to  find  more  easily  a  verdict  of  guilty. 

The  professional  reader  may  think  that  I  have  not  suffi- 
ciently dwelt  upon  some  essential  points  of  a  sound  penal 
trial,  for  instance,  on  publicity,  or  the  independence  of  counsel. 
He  will  find,  however,  that  these  subjects  are  treated  of  in 
other  parts  of  this  work,  to  which  it  was  necessary  to  refer 
them. 


AND  SELF-GOVERNMENT. 


79 


CHAPTER    VIII. 

HIGH    TREASON. 

5.  That  penal  trial  which  is  the  most  important  with  refer- 
ence to  civil  liberty,  and  in  which  the  accused  individual 
stands  most  in  need  of  peculiar  protection  by  the  law,  is  the 
trial  for  treason.  The  English  law  does  not  know  the  term 
"  political  offence,"  of  which  the  trial  for  treason  is,  commonly, 
the  highest  in  importance.  Political  Offence  is  a  term  belong- 
ing to  the  modern  law  of  some  countries  of  the  European  con- 
tinent,' and  it  was  doubtless  trials  for  offences  of  this  character, 
which  those  jurists  and  publicists  had  partly  in  view,  who,  the 
reader  will  recollect,  point  out  a  well-guarded  penal  trial, 
almost  as  the  sole  characteristic  of  civil  liberty. 

If  a  well-guarded  penal  trial  in  general  forms  an  important 
element  of  our  liberty,  because  the  individual  is  placed  opposite 
to  public  power,  a  carefully  organized  trial  for  treason  is  em- 
phatically so.  In  the  trial  for  treason  the  government  is  no 
longer  theoretically  the  prosecuting  party,  as  it  may  be  said 
it  is  in  the  case  of  theft  or  assault,  but  government  is  the 
really  offended,  irritated  party,  endowed  at  the  same  time  with 
all  the  force  of  the  government,  to  annoy,  persecute,  and  often 


'  The  American  reader  ought  to  keep  in  mind  that  the  term  Political  Offence  is 
now  a  well-established  term  on  the  continent  of  Europe.  It  is  used  in  legisla- 
tion;  thus  the  late  French  republic  abolished  capital  punishment  for  political 
offenders,  and  in  the  treaty  of  extradition  between  France  and  Spain,  "  political 
offenders"  are  excepted,  and  not  subject  to  extradition.  It  would,  nevertheless, 
be  difficult  to  give  a  definition  of  the  term  Political  Offence  sufficiently  clear  to 
be  acceptable  to  a  law-abiding  administration  of  justice.  Indeed,  we  may  say 
that  it  was  natural  this  term  should  have  presented  itself,  in  the  course  of  things 
on  the  continent  of  Europe,  and  it  is  equally  natural,  and  is  full  of  meaning, 
that  the  English  law  does  not  know  it. 


8o  ON  CIVIL   LIBERTY 

to  crush.  Governments  have,  therefore,  been  most  tenacious 
in  retaining  whatever  power  they  could  in  the  trial  for  treason; 
and,  on  the  other  hand,  it  is  most  important  for  the  free  citizen 
that  in  the  trial  for  treason  he  should  not  only  enjoy  the 
common  protection  of  a  sound  penal  trial,  but  far  greater 
protection.  In  despotic  countries  we  always  find  that  the  little 
protection  granted  in  common  criminal  trials  is  withheld  in 
trials  for  treason ;  in  free  countries,  at  least  in  England  and 
the  United  States,  greater  protection  is  granted,  and  more 
caution  demanded,  in  trials  for  treason  than  in  the  common 
penal  process.  The  trial  for  treason  is  a  gauge  of  liberty. 
Tell  us  how  they  try  people  for  treason,  and  we  will  tell  you 
whether  they  are  free.  It  redounds  to  the  glory  of  England 
that  attention  was  directed  to  this  subject  from  early  times, 
and  that  guarantees  were  granted  to  the  prisoner  indicted  for 
treason,  centuries  before  they  were  allowed  to  the  person 
suspected  of  a  common  offence ;  and  to  that  of  the  United 
States,  that  they  plainly  defined  the  crime  of  treason,  and 
restricted  it  to  narrow  limits,  in  their  very  constitution.  This 
great  charter  says.  Article  III.,  Section  III.: 

"  I.  Treason  against  the  United  States  shall  consist  only. in 
levying  war  against  them,  or  in  adhering  to  their  enemies, 
giving  them  aid  and  comfort.  No  person  shall  be  convicted 
of  treason,  unless  on  the  testimony  of  two  witnesses  to  the 
same  overt  act,  or  on  confession  in  open  court. 

"  2.  Congress  shall  have  power  to  declare  the  punishment 
of  treason;  but  no  attainder  of  treason  shall  work  corruption 
of  blood,  or  forfeiture,  except  during  the  life  of  the  person 
attainted." 

Whether  political  societies,  not  so  fortunately  situated  as 
ourselves,  yet  equally  prizing  civil  liberty,  might  safely  restrict 
the  crime  of  treason  to  such  narrow  limits  as  the  wise  and 
bold  framers  of  our  constitution  have  done,  is  a  subject  which 
belongs  to  a  branch  of  political  science  that  does  not  occupy 
us  here ;  but  it  may  be  asserted  that  several  cases  have 
actually  occurred  in  the  United  States,  in  which  all  nations 
except  the  American  would  have  considered  the  provisions  of 


AND  SELF-GOVERNMENT.  8 1 

our  constitution  insufficient,  and  in  which  nevertheless  they 
have  been  found  adequate. 

We  may  consider  the  American  law  of  high  treason  as  the 
purest  in  existence,  and  it  shows  how  closely  the  law  of 
treason  is  connected  with  civil  liberty.  Chief-Justice  Mar- 
shall said  :  "As  there  is  no  crime  which  can  more  excite  and 
agitate  the  passions  of  men  than  treason,  no  charge  demands 
more  from  the  tribunal  before  which  it  is  made  a  deliberate 
and  temperate  inquiry.  Whether  the  inquiry  be  directed  to 
the  fact  or  to  the  law,  none  can  be  more  solemn,  none  more 
important  to  the  citizen  or  to  the  government ;  none  can  more 
affect  the  safety  of  both."  ' 

All  constitutions  of  the  different  American  states,  which  men- 
tion treason,  have  the  same  provision.  Those  that  say  nothing 
special  about  it,  have  the  same  by  law,  and  in  conformity  with 
the  principles  which  the  respective  constitutions  lay  down 
regarding  penal  trials.^  None  admit  of  retrospective  laws,  of 
legislative  condemnations  of  individuals,  or  of  attainders. 

The  course  which  the  development  of  the  law  of  treason  takes 
in  history  is  this :  At  first  there  exists  no  law  of  treason,  be- 
cause the  crime  is  not  yet  separated  from  other  offences,  as 
indeed  the  penal  and  civil  laws  are  not  separated  in  the  earliest 
periods.  The  Chinese  code,  so  minute  in  many  respects,  mixes 
the  two  branches,  and  debtors  are  treated  as  criminal  offenders, 
reminding  us,  in  this  particular,  of  the  early  Roman  law.  When 
first  treason  comes  to  be  separated  from  the  other  offences,  it 
is  for  the  twofold  purpose  of  inflicting  more  excruciating  pains, 


'  The  Writings  of  Johji  Marshall,  p.  42.  Ex  parte  Bollman  and  Swartwout. 
The  rebellion  of  the  Mormons  in  1858  has  occurred  since  the  remarks  in  the 
text  were  written.  It  would  seem  sound  reasoning  and  statesmanship,  that  the 
narrower  the  limits  are  to  which  the  public  law  restricts  treason,  the  more  neces- 
sary it  becomes  to  execute  the  law  fully  within  those  limits. 

*  Judge  Story  says :  "  A  state  cannot  take  cognizance,  or  punish  the  offence, 
{i.e.  treason  against  the  United  States,)  whatever  it  may  do  in  relation  to  the 
offence  of  treason,  committed  exclusively  against  itself,  if  indeed  any  case  can, 
under  the  constitution,  exist,  which  is  not  at  the  same  time  treason  against  the 
United  States."  Chap.  28,  vol.  iii.  of  Commentaries  on  the  Constitution  of  the 
United  States. 

6 


82  ON  CIVIL  LIBERTY 

and  of  withholding  from  the  trial  the  poor  protection  which  is 
granted  to  persons  indicted  for  common  offences.  The  dire 
idea  of  a  crimen  exceptum  gains  ground.  The  reasoning,  or 
rather  unreasoning,  is  that  the  crime  is  so  enormous  that  the 
criminal  ought  not  to  have  the  same  chances  of  escape,  thus 
assuming  that  the  accused,  yet  to  be  proved  to  be  a  criminal, 
is  in  fact  a  criminal,  and  forgetting,  as  has  been  indicated 
before,  that  the  graver  the  accusation  is,  and  the  severer 
therefore  the  punishment,  in  case  of  established  guilt,  may  be, 
the  safer  and  more  guarded  ought  to  be  the  trial.  It  is  a 
fearful  inconsistency,  very  plain  when  thus  stated,  yet  we  find 
that  men  continually  fall  into  the  same  error,  even  in  our 
own  days.  How  often  is  lynch  law  resorted  to  in  our  country, 
on  the  very  plea  that  the  crime,  still  a  suspected  one,  is  so  in- 
famous that  the  regular  course  of  law  is  too  slow  or  too  doubt- 
ful !  The  same  error  prevailed  regarding  witchcraft.  The 
pope  declared  it  a  crimen  exceptum — too  abominable  to  be 
tried  by  common  process.  Protestant  governments  followed 
the  example.^ 

At  the  same  time  we  find  that,  at  the  period  of  which  we 
are  now  speaking,  the  law  of  treason  is  vastly  extending,  and 
all  sorts  of  offences,  either  because  considered  peculiarly 
heinous,  or  because  peculiarly  displeasing  to  the  public  power, 
are  drawn  within  the  meaning  of  treason.  A  list  of  all  the 
offences  which  at  some  time  or  other  have  been  considered  to 
amount  to  treason,  from  the  crime  of  "  offended  divine 
majesty,"  (crimen  laesae  majestatis  divinse,)  in  which  stealing 


'  I  seize  upon  this  opportunity  of  advising  every  young  reader  of  this  work  to 
study  with  earnest  attention  the  history  of  the  witch-trials,  forming,  possibly, 
with  the  African  slave-trade,  the  greatest  aberrations  of  our  Cis-Caucasian  race. 
Such  works  as  Soldan's  History  of  tlie  Witch-Trials  [Gesch.  der  Hexenprocesse, 
Stuttgard,  1S43]  exhibit  the  psychology  of  public  and  private  passion,  of  crime 
and  criminal  law,  in  so  impressive  and  instructive  a  manner,  that  the  sad  course 
of  crime  and  error  having  been  run  through,  it  ought  not  to  stand  on  record  in 
vain  for  us.  We  learn,  in  histoiy  and  in  psychology,  as  in  nature,  to  understand 
the  principles,  motives,  and  laws  of  minor  actions,  by  the  changes  and  convul- 
sions on  a  large  scale;  and  the  vast  changes  and  revulsions  by  the  microscopic 
observatit)n  of  the  minute  reality  around  us. 


AND   SELF-  G  O  I  'ERXMEXT. 


83 


fiom  a  church  was  included,  to  the  most  trivial  common 
offences,  and  which  I  have  made  out  for  my  own  use,  would 
astound  the  reader,  if  this  were  the  place  to  exhibit  it. 

When  political  civilization  advances,  and  people  come  to 
understand  more  clearly  the  object  and  use  of  government,  as 
well  as  the  dangers  which  threaten  society  and  the  individual, 
the  very  opposite  course  takes  place.  More  protection  is 
granted  to  the  person  indicted  for  treason,  than  in  common 
penal  trials,  and  the  meaning  of  treason  is  more  and  more 
narrowed.  The  definition  of  treason  is  made  more  distinct, 
and  constructive  treason  is  less  and  less  allowed,  until  we  arrive 
at  our  own  clear  and  definite  law  of  treason. 

It  is  thus  that  the  law  of  treason  becomes,  as  I  stated  before, 
a  symptomatic  fact,  and  is  in  politics  what  roads,  the  position 
of  woman,  public  amusements,  the  tenure  of  land,  architecture, 
habits  of  cleanliness,  are  in  other  spheres.  They  are  gauges 
of  social  advancement.  The  more  I  studied  this  subject,  the 
more  I  became  convinced  of  the  instruction  to  be  derived  from 
the  history  of  the  law  of  treason  in  ancient  times,  the  middle 
ages,  and  modern  periods,  and  it  was  my  intention  to  append 
a  paper  to  this  work,  which  should  give  a  survey  of  the  whole. 
When,  howev^er,  I  came  to  arrange  my  long-collected  materials, 
I  found,  although  firmly  resolved  to  disregard  an  author's  par- 
tiality for  materials  of  interest  once  collected,  and  to  restrict 
the  paper  to  the  merest  outlines,  that  it  would  be  impossible 
to  do  any  justice  to  the  subject  without  allowing  to  it  a  dis- 
proportionally  large  place.  I  decided,  therefore,  to  leave  the 
subject  for  a  separate  work. 

In  conclusion  I  would  repeat,  experience  proves  that  not 
only  are  all  the  guarantees  of  a  fair  penal  trial  peculiarly  neces- 
sary for  a  fair  trial  for  treason,  but  that  it  requires  additional 
safeguards ;  and,  of  the  one  or  the  other,  the  following  seem 
to  me  the  most  important : 

The  indictment  must  be  clear  as  to  facts  and  time  when  the 
indicted  act  has  been  committed ; 

The  prisoner  must  have  the  indictment  a  sufficient  time 
before  the  trial,  so  as  to  be  able  to  prepare  for  it; 


84  ON  CIVIL  LIBERTY 

He  must  have  a  list  of  the  witnesses  against  him,  an  equal 
time  beforehand ; 

A  sufficient  time  for  the  trial  must  be  allowed ;  and  the 
prisoner  must  not  be  seized,  tried,  and  executed,  as  Cornish 
was,  in  1685,  in  a  week,  as  Burnet  says,  or,  as  McAulay  has  it, 
in  ten  days ; 

Counsel  must  be  allowed,  as  a  matter  of  course ; 

The  judges  must  be  impartial  and  independent,  and  ample 
challenges  must  be  allowed  ;  peers  must  judge.  Consequently, 
judges  must  not  be  asked  by  the  executive,  before  the  trial, 
what  their  judgment  would  be  if  such  or  such  a  case  should 
be  brought  before  them,  as  was  repeatedly  done  by  the 
Stuarts ; 

Of  all  trials,  hearsay  must  be  excluded  from  the  trial  for 
treason ; 

Facts,  not  tendencies ;  acts,  not  words  or  papers  written  by 
the  indicted  person,  and  which  have  never  been  allowed  to 
leave  his  desk,  must  be  charged ; 

Perfect  publicity  must  take  place  from  beginning  to  end, 
and  reporters  must  not  be  excluded ;  for  it  is  no  publicity  in 
a  populous  country  that  allows  only  some  twenty  or  forty 
by-standers ;  ^ 

The  trial  must  be  in  presence  of  the  prisoner ; 

Several  witnesses  must  be  required  to  testify  to  the  same 
fact,  and  the  witnesses  for  the  prisoner  must  be  as  much  upon 
oath  as  those  for  the  government ; 

Confession,  if  unconditionally  admitted  at  all,  must  at  least 
be  in  open  court ; 

There  must  be  no  physical  nor  psychical  torture  01  co- 
ercion ; 

There  must  be  good  witnesses,  not  known  villains  or 
acknowledged  liars,  as  Titus  Gates,  or  Lord  Howard  against 
Lord  Russell ; 

The  judges  must  not  depend  upon  the  executive ; 


'  When,  in  1858,  Count  Montalembert  was  tried  in  Paris  for  having  written  a 
pamphlet  in  praise  of  England,  a  peculiarly  small  court-room  was  selected,  only 
a  few  persons  were  admitted,  by  tickets,  and  no  notes  were  allowed  to  be  taken. 


AND  SELF-GOVERNMENT.  85 

No  evidence  must  be  admitted  which  is  not  admitted  in 
other  trials ; 

There  must  be  a  fixed  punishment ; 

There  must  be  no  constructive  treason  ; 

And  the  judges  must  not  be  political  bodies. 

These  guarantees  have  been  elaborated  by  statute  and  com- 
mon law,  through  periods  of  freedom  and  tyranny,  by  the 
Anglican  race.  The  English  law  grants  these  safeguards, 
except  indeed  the  last  to  lords,  because,  according  to  the 
principle  that  every  one  must  be  tried  by  his  peers,  a  lord  is 
tried  by  the  house  of  lords.  It  showed  great  wisdom  that 
the  framers  of  our  constitution  did  not  assign  the  trial  for 
treason  to  the  senate,'  as  the  former  French  constitution 
appointed  the  house  of  peers  to  be  the  court  for  high  treason. 
American  impeachments  are  tried  indeed  by  the  senate,  but  it 
will  be  observed  that  the  American  trial  of  impeachment  is  not 
a  penal  trial  for  offences,  but  a  political  institution,  trying  for 
political  capacity.  The  senate,  when  sitting  as  a  court  to  try 
impeachments,  can  only  remove  from  office,  whatever  the  crime 
may  have  been ;  and  the  impeached  person  can  be  penally 
tried  after  the  senate  has  removed  him  from  office.^  In  its 
political  character,  then,  but  in  no  other  point,  the  American 
impeachment  resembles  the  Athenian  ostracism,  which  was 
likewise  a  political,  and  not  a  penal  institution.  The  English 
impeachment  is  a  penal  trial. 

The  trials  for  treason  going  on  in  many  countries  of  the 
European  continent,  especially  in  Naples  and  the  Austrian 
dominions,  are,  by  way  of  opposite,  fair  illustrations  of  what 
has  been  stated  here.3 

The  trial  for  treason  has  been  treated  of  in  this  place 
because  naturally  connected  with  the  subject  of  the  penal  trial 


'  The  American  trials  for  treason  are  collected  in  Francis  Wharton's  State 
Trials  of  the  United  States,  Philadelphia,  1846. 

['  And,  it  may  be,  acquitted,  as  the  court  of  ordinary  justice  would  have  its  own 
definition  of  crime,  and  its  own  rules  of  evidence.] 

3  The  reader  may  be  acquainted  with  the  Right  Hon.  Mr.  Gladstone's  pamphlet 
on  Neapolitan  trials  for  treason,  published  in  1851.     It  is  but  a  sample. 


86  OiV  CIVIL   LIBERTY 

in  general.  Otherwise  it  would  have  been  more  properly 
enumerated  among  the  guarantees  connected  more  especially 
with  the  general  government  of  a  free  country.  We  return, 
therefore,  once  more  to  the  guarantees  of  individual  rights.^ 


*  I  would  mention  for  the  younger  student,  that  when  I  study  pervading  insti- 
tutions, or  laws  and  principles  which  form  running  threads  through  the  whole 
web  of  history,  I  find  it  useful  to  make  chronological  tables  of  their  chief  ad- 
vancements and  reverses.  Such  tables  are  very  suggestive,  and  strikingly  show 
what  we  owe  to  the  continuity  of  human  society.  None  of  these  tables  has  been 
more  instructive  to  me  than  that  on  the  history  of  the  law  of  treason. 


AND  SELF-  G O  VERNMENT. 


87 


CHAPTER    IX. 

COMMUNION. — LOCOMOTION,    EMIGRATION. 

6.  The  freedom  of  communion  is  one  of  the  most  precious 
and  necessary  rights  of  the  individual,  and  one  of  the  indis- 
pensable elements  of  all  advancing  humanity — so  much  so, 
indeed,  that  it  is  one  of  those  elements  of  liberty  which  would 
have  never  been  singled  out,  had  not  experience  shown  that 
it  forms  invariably  one  of  the  first  objects  of  attack  when 
arbitrary  power  wishes  to  establish  itself,  and  one  of  the  first 
objects  of  conquest  when  an  unfree  people  declares  itself 
free. 

I  have  dwelt  on  the  primordial  right  of  communion  in  the 
Political  Ethics  at  great  length,  and  endeavored  to  show  that 
the  question  is  not  whether  free  communion  or  a  fettered  press 
be  conducive  to  more  good,  but  that  everything  in  the  in- 
dividual and  in  nations  depends  in  a  great  measure-  upon 
communion,  and  that  free  communion  is  a  pre-existing  condi- 
tion. The  only  question  is,  how  to  select  the  best  government 
with  it,  and  how  best  to  shield  it,  unless,  indeed,  we  were 
speaking  of  tribes  in  a  state  of  tutelage,  ruled  over  by  some 
highly  advanced  nation. 

In  this  place  we  only  enumerate  freedom  of  communion  as 
one  of  the  primary  elements  of  civil  liberty.  It  is  an  element 
of  all  civil  liberty.  No  one  can  imagine  himself  free  if  his 
communion  with  his  fellows  is  interrupted  or  submitted  to 
surveillance ;  but  it  is  the  Anglican  race  which  first  established 
it  on  a  large  scale,  broadly  and  nationally  acknowledged.* 

Free  nations  demand  and  guarantee  free  communion  of 
speech,  the  right  of  assembling  and  publicly  speaking,  for  it  is 


'  The  first  fair  play  was  given  to  a  free  press  in  the  Netherlands. 


88  ON  CIVIL  LIBERTY 

communion  of  speech  in  this  form  which  is  pecuharly  exposed 
to  abridgment  or  suppression  by  the  pubHc  power;  they 
guarantee  the  hberty  of  the  press,  and,  lastly,  the  sacredness 
of  epistolary  communion. 

It  is  a  very  striking  fact  that,  although  the  Constitution  of 
the  United  States  distinctly  declares  that  the  government  of 
the  United  States  shall  only  have  the  power  and  authority 
positively  granted  in  that  instrument,  so  that,  in  a  certain 
lespect,  it  was  unnecessary  to  say  what  the  government  should 
not  have  the  right  to  do,  still,  in  the  very  first  article  of  the 
Additions  and  Amendments  of  the  Constitution,  congress  is 
forbidden  to  make  any  "law  respecting  an  establishment  of 
religion,  or  prohibiting  the  free  exercise  thereof;  or  abridging 
the  freedom  of  speech,  or  of  the  press,  or  the  right  of  the 
people  peaceably  to  assemble,  and  to  petition  the  government 
for  a  redress  of  grievances." 

The  reader  will  keep  in  mind  that  the  framers  of  our  con- 
stitution went  out  of  their  way  and  preferred  to  appear  incon- 
sistent, rather  than  omit  the  enumeration  of  those  important 
liberties,  that  of  conscience,  as  it  is  generally  called,  that  of 
communion,  and  of  petitioning  ;  and  the  reader  will  remember, 
moreover,  that  these  rights  were  added  as  amendments.  They 
must  then  have  appeared  very  important  to  those  who  made 
our  constitution,  both  on  account  of  their  intrinsic  importance, 
and  because  so  often  attacked  by  the  power-holders.  Let  the 
reader  also  remember  that,  if  it  be  thus  important  to  abridge 
the  power  of  government  to  interfere  with  free  communion,  it 
is  at  least  equally  important  that  no  person  or  number  of  men 
interfere,  in  any  manner,  with  this  sacred  right.  Oppression 
does  not  come  from  government  or  official  bodies  alone.  The 
worst  oppression  is  of  a  social  character,  or  by  a  multitude. 

The  English  have  established  the  right  of  communion,  as  so 
many  other  precious  rights  by  common  law,  by  decisions,  by 
struggles,  by  revolution.  All  the  guarantee  they  have  for  the 
unstinted  enjoyment  of  the  right  lies  in  the  fact  that  the 
whole  nation  says  with  one  accord,  as  it  were :  Let  them  try 
to  take  it  away. 


AXD  SELF-CO VERNMEA'T.  89 

It  is  the  same  with  our  epistolary  communion.  The  fight 
of  freely  corresponding  is  unquestionably  one  of  the  dearest 
as  well  as  most  necessary  of  civilized  man ;  yet  our  fore- 
fathers were  so  little  acquainted  with  a  police  government, 
that  no  one  thought  of  enumerating  the  sacredness  of  letters 
along  with  the  freedom  of  speech  and  the  liberty  of  the  press. 
The  liberty  of  correspondence  stands  between  the  two  ;  free 
word,  free  letter,  free  print.  The  framers  did  not  think  of  it, — 
as  the  first  law-makers  of  Rome  are  said  to  have  omitted  the 
punishment  of  parricide. 

The  sacredness  of  the  letter  appears  the  more  important 
when  it  is  considered  that  in  almost  all  civilized  countries  the 
government  is  the  carrier  of  letters  and  actually  forbids  any 
individual  to  carry  sealed  letters.^  So  soon  as  the  letter,  there- 
fore, is  dropped  into  the  box,  where,  as  it  has  just  been  stated, 
the  gov-ernment  itself  obliges  the  correspondent  to  deposit  it,  it 
is  exclusively  entrusted  to  the  good  faith  and  honorable  dealing 
of  government.  If  spies,  informers,  and  mouchards  are  odious 
to  every  freeman  and  gentleman,  the  prying  into  letters,  car- 
ried on  in  France  and  other  countries  with  bureaucratic  sys- 
tem, is  tenfold  so,  for  it  strikes  humanity  in  one  of  its  vital 
points ;  and  had  the  mail  acquired  as  great  an  importance  in 
the  seventeenth  century  as  in  ours,  as  an  agent  of  civiliza- 
tion, and  had  Charles  I.  threatened  this  agent  as  he  invaded 
the  right  of  personal  liberty,  the  Petition  of  Right  would  have 
mentioned  the  sacredness  of  letters^  as  surely  as  it  pointed  out 
the  billeting  of  soldiers  as  one  of  the  four  great  grievances  of 
which  the  English  would  be  freed  before  they  would  grant 
any  supplies  to  the  government.^ 


'  The  law  of  the  United  States  prohibits  any  private  person  periodically  and 
regularly  to  carry  letters,  and  also  to  carry  letters  in  mail  ships. 

[^  The  letters  publicly  transmitted  by  mail  were  so  few  in  number  that  the 
right  was  not  felt  to  be  very  important.    Nor  had  it  been  systematically  invaded.] 

3  The  American  states  in  which  slavery  exists  have  not  considered  the  laws 
or  principles  relating  to  letters  to  apply  to  pul)lic  journals,  when  suspicion  exists 
that  they  contain  articles  hostile  to  slavery.  In  some  cases  people  have  broken 
into  the  post-office  and  seized  the  obnoxious  papers ;  in  other  cases  the  state 
legislature  have  decreed  punishments  for  propagating  abolition  papers.     Thus_ 


90 


ON  CIVIL  LIBERTY 


In  all  the  late  struggles  for  liberty  on  the  continent  of 
Europe,  the  sacredness  of  letters  was  insisted  upon,  not  from 
abstract  notions,  but  for  the  very  practical  reason  that  govern- 
ments had  been  in  the  habit  of  disregarding  it.  Of  course, 
they  now  do  so  again.  The  English  parliament  took  umbrage, 
a  few  years  ago,  at  the  liberty  a  minister  had  taken  of  order- 
ing the  opening  of  letters  of  certain  political  exiles  residing 
in  England,  and,  although  he  stated  that  it  had  been  the  habit 
of  all  administrations  to  order  it  under  certain  circumstances, 
he  promised  to  abstain  in  future.  In  the  United  States  there 
is  no  process  or  means  known  to  us,  not  even  by  writ  of  a 
court,  we  believe,  by  which  a  letter  could  be  extracted  from 
the  post-office,  except  by  him  to  whom  it  is  addressed ;  and 
as  to  the  executive  unduly  opening  letters,  it  would  be  cause 
for  instant  impeachment. 

Quite  recently,  in  the  month  of  April,  1853,  it  appeared  in 
the  prosecution  of  several  persons  of  distinction  at  Paris,  for 
giving  wrong  and  injurious  news  to  foreign  papers,  that  their 
letters  had  not  only  been  opened  at  the  post-office,  but  that 
the  originals  had  been  kept  back,  and  copies  had  been  sent  to 
the  recipients,  with  a  postscript,  written  by  the  government 
officer,  for  the  purpose  of  fraudulently  explaining  the  different 
handwriting.    It  stated  that  the  correspondent  had  a  sore  hand. 


we  read  in  the  National  Intelligencer,  Washington,  October  6,  1853,  that  "Mr. 
Herndon,  postmaster  at  Glenville,  informs  the  editor  of  the  Religious  Telescope, 
at  Circleville,  Ohio,  that  having,  according  to  the  laws  of  Virginia,  opened  and 
inspected  his  papers,  and  found  them  to  contain  abolition  sentiments,  he  has 
refused  to  deliver  them  as  addressed,  and  has  publicly  burnt  them  in  presence  of 
a  magistrate.  It  appears  by  his  letter  that  the  penalty  for  circulating  such  papers 
is  imprisonment  in  the  penitentiary  for  not  less  than  one  nor  more  than  five 
years." 

Such  is  the  law,  and  its  lawfulness,  wisdom,  and  dignity  must  be  judged  of  by 
the  laws  and  principles  by  which  other  measures  are  judged;  but  it  cannot  be 
denied  that  a  freeman  feels  himself  circumscribed  so  far  as  he  is  denied  to  read 
what  he  chooses.  If  a  government  or  a  set  of  men  were  to  forbid  a  man  to  read 
an  atheistic  paper,  though  he  might  be  a  fervent  Christian,  his  liberty  would  be 
undoubtedly  circumscribed //-^  tanto. 

That  the  seizure  of  English  papers  on  the  continent  is  of  frequent  occur- 
rence, is  well  known  by  every  reader  of  the  daily  papers. 


AND  SELF-GOVERNMENT,  9I 

When  the  counsel  for  the  accused  said  that  the  falsifying 
officer  ought  to  be  on  the  bench  of  the  accused,  the  court 
justified  the  prefect  of  the  police,  on  the  ground  of  "  reasons 
of  state."  No  commentary  is  necessary  on  such  self-vilification 
of  governments ;  but  this  may  be  added,  that  these  outrages 
were  committed  even  without  a  formal  warrant  from  any  one, 
but  on  the  sole  command  of  the  police.  Are  we,  then,  wrong 
in  calling  such  governments  police  governments  ?  It  is  not 
from  a  desire  to  stigmatize  these  governments.  It  is  on  account 
of  the  prevailing  principle,  and  the  stigma  is  a  natural  conse- 
quence of  this  principle.* 


'  In  the  decision  of  the  appellate  court  in  the  same  case  we  find  this  to  be  the 
chief  argument,  that  government  establishes  post-offices,  and  cannot  be  expected 
to  lend  its  hand  to  the  promotion  of  mischief,  by  carrying  letters  of  evil-doers. 
This  is  totally  fallacious.  Government  does  not  establish  post-offices,  but  society 
establishes  them  for  itself,  though  it  may  be  through  government.  The  mail  is 
no  boon  granted  by  government. 

If  it  did,  it  is  not  a  benefit  done  by  a  second  party,  as  when  A  makes  a  present 
to  B,  but  government  is  simply  and  purely  an  agent ;  and,  what  is  more,  the 
right  of  establishing  post-offices  is  not  an  inherent  attribute  of  government,  such 
as  the  administration  of  justice  or  making  war.  Government  merely  becomes 
the  public  carrier,  for  the  sake  of  general  convenience.  There  are  many  private 
posts,  and  governments  without  government  post-offices,  for  instance,  the  republic 
of  Hamburg. 

The  opening  of  letters  without  proper  warrant  is  a  frightful  perversion  of 
power,  and  though  government  should  be  able  to  get  at  secret  machinations,  the 
secret  of  letters  is  a  primordial  condition.  Government  might,  undoubtedly, 
know  many  useful  things  if  the  sacredness  of  Catholic  confession  were  broken 
into;  but  that  is  considered  a  primordial  and  pre-political  condition.  So,  many 
codes  do  not  force  a  son  to  testify  against  a  father;  the  family  affection  is  con- 
sidered a  primordial  condition.  The  very  state  of  society,  for  which  it  is  worth 
living,  is  invaded,  if  the  correspondence  is  exposed  to  this  sort  of  government 
burglary. 

The  argument  is  simply  this.  Man  is  destined  to  live  in  society,  united  by 
converse  and  intercommunion;  this  is  a  basis  of  humanity.  If  you  open  letters, 
you  seriously  invade  this  primary  condition.  Men  are  individuals,  and  social 
beings,  destined  for  civilization  and  united  progress,  and  the  question  is  not 
whether  they  may  be  dispensed  with,  but  how  to  govern  with  them.  Govern- 
ments too  frequently  act  as  though  the  government  were  the  primary  condition, 
and  the  remaining  question  only  was,  how  much  may  be  spared  by  government 
to  be  left  for  society  or  individuals.     The  opposite  is  the  truth. 

After  this  note  had  been  published,  the  French  court  of  cassation,  "  all  cham- 


92 


ON  CIVIL  LIBERTY 


England,  as  may  be  supposed,  has  not  always  enjoyed  liberty 
of  the  press.  It  is  a  conquest  of  high  civilization.  It  is,  however, 
a  remarkable  fact,  that  England  owed  its  transitory  but  most 
stringent  law  of  a  censorship  to  her  republican  government. 

On  September  20,  1647,  it  was  decreed  by  the  republican 
government  in  England  that  no  book  henceforth  be  printed 
without  previously  being  read  and  permitted  by  the  public 
censor,  all  privileges  to  the  contrary  notwithstanding.  House 
searches  for  prohibited  books  and  presses  should  be  made,  and 
the  post-office  would  dispatch  innocent  books  only.  All  places' 
where  printing-presses  may  exist  should  be  indicated  by  au- 
thority. Printers,  publishers,  and  authors  were  obliged  to  give 
caution-money  for  their  names.  No  one  was  permitted  to 
harbor  a  printer  without  permission,  and  no  one  permitted  to 
sell  foreign  books  without  permission.  Book-itinerants  and 
ballad-singers  were  imprisoned  and  whipped.  We  are  all 
acquainted  with  Milton's  beautiful  and  searching  essay  on  the 
liberty  of  the  press  against  this  censorship.' 

The  reader  who  pays  attention  to  the  events  of  his  own 
days  will  remember  the  law  against  the  press,  issued  imme- 
diately after  the  coup  d'etat  of  Louis  Napoleon,  which  puts 
the  sale  of  printing  and  lithographic  presses,  copying  ma- 
chines, as  well  as  types,  under  police  supervision,  and  which, 
in  one  word,  intercepts  all  public  communion. 


bers  united,"  decided,  in  the  last  resort,  that  in  the  case  of  Coetlogon,  Flandin, 
and  others,  no  illegal  act  had  been  committed  by  the  prefect  of  the  police,  in 
opening  letters,  etc.  etc.  The  decision  is  given  in  full  in  the  Courrier  des  Etats- 
Unis,  New  York,  December  12,  1853. 

'  [Several  corrections  are  necessary  in  this  and  the  preceding  paragraph.  The 
long  parliament — not  the  commonwealth — passed  an  ordinance  June  11,  1643, 
for  restraining  the  liberty  of  the  press,  and  to  strengthen  some  former  order? 
made  for  that  purpose.  This  led  to  Milton's  Areopagitica,  published  in  Novem- 
ber, 1644.  Afterwards,  September  21,  1647,  in  consequence  of  a  letter  from 
Gen.  Fairfax,  complaining  of  scandalous  pamphlets,  a  new  ordinance  was  passed, 
which  contains  several  of  the  particulars  mentioned  in  the  text.  Comp.  Cob- 
bett's  Pari.  Hist.,  iii.  pp.  131,  132,780.  In  1662  a  new  licensing  law  was  passed 
under  Charles  II.  In  1695,  under  William,  the  Licensing  act  ceased  to  have 
effect,  an  1  was  not  again  passed.  Comp.  Smyth's  Lect.  on  Hist.,  ii.  lect.  22  ; 
Macaulay's  Hist.,  iv.  348,  et  seq.,  541.] 


A  ND  SELF-  G  O  VERNMENT. 


93 


I  suppose  it  will  be  hardly  necessary  to  treat,  in  connection 
with  the  liberty  of  communion,  of  the  "  liberty  of  silence,"  as 
a  French  paper  headed  an  article,  when,  soon  after  the  coup 
d'etat,  it  was  intimated  to  a  Paris  paper,  by  the  police,  that 
its  total  silence  on  political  matters  would  not  be  looked  upon 
by  government  with  favor,  should  the  paper  insist  on  con- 
tinuing it. 

It  would  be,  however,  a  great  mistake  to  suppose  that  gov- 
ernments alone  interfere  with  correspondence  and  free  commu- 
nion. Governments  are  bodies  of  men,  and  all  bodies  of  men 
act  similarly  under  similar  circumstances,  if  the  power  is 
allowed  them.  All  absolutism  is  the  same.  I  have  ever  ob- 
served, in  all  countries  in  which  I  have  lived,  that,  if  party 
struggle  rises  to  factious  passion,  the  different  parties  en- 
deavor to  get  hold  of  the  letters  of  their  adversaries.  It  is, 
therefore,  of  the  last  importance,  both  that  the  secret  of  letters 
and  the  freedom  of  all  communion  be  legally  protected  as 
much  as  possible,  and  that  ever}'-  true  friend  of  liberty  present 
the  importance  of  this  right  in  the  clearest  possible  manner  to 
his  own  mind. 

7.  The  right  of  locomotion,  or  of  free  egress  and  regress,  as 
well  as  free  motion  within  the  country,  is  another  important 
individual  right  and  element  of  liberty. 

The  strength  of  governments  was  generally  considered,  in 
the  last  century,  to  consist  in  a  large  population,  large  amount 
of  money,  that  is  specie,  within  the  country,  and  a  large 
army  founded  upon  both.  It  was  consistent,  therefore,  that 
in  countries  in  which  individual  rights  went  for  little,  and  the 
people  were  considered  the  mere  substratum  upon  which  the 
state,  that  is  the  government,  was  erected,  emigration  was 
considered  with  a  jealous  eye,  or  wholly  prohibited.  Nor  can 
it  be  denied  that  emigration  may  present  itself  in  a  serious 
aspect.  So  many  people  are  leaving  Ireland,  that  it  is  now 
common,  and  not  inappropriate,  to  speak  of  the  Irish  exodus; 
and  it  has  been  calculated,  upon  authentic  data,  both  in  Ger- 
many and  the  United  States,  that  for  the  last  few  years  the 
German  emigrants  have  carried  not  far  from  fifteen  millions 


g^  ON  CIVIL   LIBERTY 

of  Prussian  dollars  annually  into  the  United  States.*  The 
amount  of  emigrating  capital  may  become  greater  even;  but 
freemen  believe  that  governments  are  for  them,  not  they  for 
governments,  and  that  it  is  a  precious  right  of  every  one  to 
seek  that  spot  on  earth  where  he  can  best  pursue  the  ends  of 
life,  physical  and  mental,  religious,  political,  and  cultural.^ 

If,  under  peculiar  circumstances,  a  country  should  find  itself 
forced  to  prohibit  emigration,  the  measure  would,  at  any  rate, 
so  far  as  this  right  goes,  be  an  abridgment  of  liberty.^  We 
can  imagine  many  cases  in  which  emigration  should  be  stopped 
by  changing  those  circumstances  which  cause  it,  but  none  in 
which  it  ought  to  be  simply  prohibited.  The  universal  princi- 
ple of  adhesiveness,  so  strong  in  all  spheres  of  action,  thought, 
and  affection,  and  which  forms  one  of  the  elementary  princi- 
ples of  society  and  continuity  of  civilization,  is  sufficiently 
strong  to  keep  people  where  they  are,  if  they  can  remain;  and 
if  they  leave  an  over-peopled  country,  or  one  in  which  they 
cannot  find  work  or  a  fair  living,  they  become  active  producers 
in  the  new  country,  and  consequently  proportionate  consumers 
in  the  great  market  of  the  world,  so  that  the  old  country  will 


'  On  the  other  hand,  an  immense  amount  of  capital  annually  returns,  from  suc- 
cessful emigrants  in  the  United  States,  to  Ireland  and  Germany.  Persons  who 
have  not  paid  attention  to  the  subject  cannot  have  any  conception  how  many 
hard  yet  gladly  earned  pounds  and  thalers  are  sent  from  our  country  to  aged 
parents  or  toiling  sisters  and  brothers  in  Europe.  A  wide-spread  and  blessed 
process  of  affection  is  thus  all  the  time  going  on — silent,  gladdening,  and 
full  of  beauty,  like  the  secret  and  beautifying  process  of  spring.  It  is  curious  to 
observe,  in  connection  with  this  emigration  of  coin  from  Europe,  (for  a  large 
portion  of  the  emigrating  capital  consists  in  European  specie,)  how  the  coins  are 
first  carried  to  the  distant  west  in  the  pouches  of  the  emigrants,  and  then  are 
sent  in  large  boxes  from  the  western  Vanks,  into  which  they  naturally  flow,  to  the 
New  York  banks,  to  be  sold  to  the  specie-broker,  who  sells  them  for  shipment 
back  to  France,  Germany,  or  England.  The  Banks  of  New  York,  by  T.  S.  Gib- 
bons, New  York,  1859. 

»  In  the  Prussian  constitution  of  1850,  Tit,  ii.  Art. ii.,  it  is  said,  "The  right  to 
emigrate  cannot  be  restricted  by  the  state,  except  with  j-espect  to  the  duty  of  mili- 
tary service." 

3  [Penalties  for  escaping  a  draft  in  time  of  war,  or  deserting  one's  country  in 
its  perils,  may  be  perfectly  just.  Comp.  the  Oration  of  Lycurgus  against  Leocra- 
tes,  e.g.  §§  II,  16.] 


A  XD  SELF-  G  0  VERXMENT. 


95 


reap  its  proportionate  benefit,  provided  free  exchange  be 
allowed  by  the  latter. 

The  same  applies  to  the  capital  removed  along  with  emi- 
gration. It  becomes  more  productive,  and  mankind  at  large 
are  benefited  by  it. 

Besides,  it  is  but  a  part  of  the  general  question,  Shall  or  shall 
not  governments  prohibit  the  efflux  of  money?  It  was  for- 
merly considered  one  of  the  highest  problems  of  statesman- 
ship, even  by  a  ruler  so  wise  as  Frederic  II.  of  Prussia,  to 
prevent  money  from  flowing  out  of  the  country ;  for  wealth 
was  believed  to  consist  in  money.  Experience  has  made  us 
wiser.  ^Ve  know  that  the  freest  action  in  this,  as  in  so  many 
other  cases,  is  also  the  most  conducive  to  general  prosperity. 
It  was  stated  in  the  journals  of  the  day  that  Miss  Jenny  Lind 
remitted  five  hundred  thousand  dollars  from  the  United  States 
to  Europe.  Suppose  this  to  be  true,  would  we  have  been 
benefited  had  she  been  forced  to  leave  that  sum  in  this  coun- 
try ? '  Or  would  we,  upon  the  whole,  profit  by  preventing  five 
million  dollars,  which,  according  to  the  statement  of  our 
secretary  of  state,  are  now  annually  sent  by  our  Irish  emi- 
grants to  Ireland,  from  leaving  our  shores?^    Unquestionably 


'  The  papers  of  September,  1853,  reported  that  "  the  Silby  estate,  belonging 
to  the  Hon.  Mrs.  Petre,  has  been  sold  to  Lord  Londesborough  for  ;/^270,000. 
Mrs.  Petre,  whose  property  was  left  by  her  husband  entirely  at  her  own  disposal, 
has  taken  the  veil  in  a  nunnery  in  France,  which  will  of  course  receive  the  whole 
of  her  fortune." 

This  emigration  of  more  than  a  million  of  dollars,  and  serving  for  the  purpose 
of  a  religious  community  not  favored  by  the  country  whence  it  emigrates,  (not 
to  speak  of  the  actual  droit  d''aubaine  in  France  before  the  revolution,)  indicates 
a  great  advance  of  civilization,  and  would  not  be  allowed  in  several  countries. 
[The  laws  of  civilized  states,  however,  may  properly  limit  or  forbid  the  acquisition 
of  property  in  mortmain  or  by  religious  corporations.  And  if  within  a  countiy 
religious  bodies  were  forbidden  to  hold  such  property,  why  should  they,  if  situ- 
ated in  another,  have  such  capacity  of  acquisition  from  the  foreign  country?] 

"  Hon.  Edward  Everett's  dispatch  to  Mr.  Crampton,  on  the  Island  of  Cuba, 
December  l,  1852.     The  London  Spectator  o{  Vi^ztrdhe^x  17,  1853,  said: — 

*'  Not  less  than  _^2,972,ooo  was  remitted  from  Irish  emigrants  in  America  to 
their  friends  and  relatives  at  home,  in  1848,  1849,  1850,  and  185 1.  It  is  esti- 
mated that  if  the  remittances  have  continued  at  the  same  rate,  upwards  of  four 
millions  muft  have  b^en  remitted  in  the  last  six  years." 


96  ON  CIVIL  LIBERTY 

not.     But  this  is  not  the  place  for  further  pursuing  a  question 
of  poHtical  economy. 

The  Enghsh  provided  for  a  free  egress  and  regress  as  early 
as  in  Magna  Charta.  As  to  the  freest  possible  locomotion 
within  the  country,  I  am  aware  that  many  persons  accustomed 
to  Anglican  liberty  may  consider  my  mentioning  it  as  part  of 
civil  liberty  too  minute.  If  they  will  direct  their  attention  to 
countries  in  which  this  liberty  is  not  enjoyed  in  its  fullest 
extent,  they  will  agree  that  I  have  good  reason  for  enumer- 
ating it.  Passports  are  odious  things  to  Americans  and 
Englishmen,  and  may  they  always  be  so.^ 


•  The  primordial  right  of  locomotion  and  emigration  has  been  discussed  by  me 
in  Political  Ethics,  at  considerable  length.  The  state  of  Mississippi  declares  in 
its  bill  of  rights,  that  the  right  of  emigration  sKall  never  be  infringed  by  law 
or  authority.  The  English  distaste  of  passports  was  severely  tried  when,  after 
Orsini's  attempt  to  assassinate  Napoleon  III.,  stringent  passport  regulations  were 
adopted  in  France;  but  the  English  found  them  so  irksome  (and  the  money 
they  spend  is  so  acceptable  to  the  continent)  that  those  police  regulations  were 
soon  relaxed  in  a  very  great  degree.  Napoleon  III.,  when  an  exile,  wrote  on  the 
individual  liberty  in  England,  and  called  passports  "  that  invention  of  the  Com- 
mittee of  Public  Safety."  See  his  works.  The  modern  passport  was,  doubtless, 
^^2i\\^  developed  m  the  first  French  revolution,  but  not  invented.  The  history  of 
the  passport,  from  the  Roman  Empire  to  the  modern  railroad,  which  naturally 
interferes  with  its  stringency,  is  an  interesting  portion  of  the  history  of  our  race, 
but  it  belongs  to  what  the  Germans  have  carved  out  as  a  separate  branch  under 
the  name  of  Police  Science,  (Polizei-Wissenschaft.) 


AND  SELF-GOVERNMENT. 


97 


CHAPTER    X. 

LIBERTY   OF  CONSCIENCE. — PROPERTY. — SUPREMACY   OF 
THE   LAW. 

8.  Liberty  of  conscience,  or,  as  it  ought  to  be  called  more 
properly,^  the  liberty  of  worship,  is  one  of  the  primordial 
rights  of  man,^  and  no  system  of  liberty  can  be  considered 
comprehensive  which  does  not  include  guarantees  for  the  free 
exercise  of  this  right.  It  belongs  to  American  liberty  to 
separate  entirely  the  institution  which  has  for  its  object  the  sup- 
port and  diffusion  of  religion  from  the  political  government. 
We  have  seen  already  what  our  constitution  says  on  this  point. 
All  state  constitutions  have  similar  provisions.^  They  prohibit 
government  from  founding  or  endowing  churches,  and  from 
demanding  a  religious  qualification  for  any  office  or  the 
exercise  of  any  right.  They  are  not  hostile  to  religion,  for 
we  see  that  all  the  state  governments  direct  or  allow  the  Bible 
to  be  read  in  the  public  schools ;  but  they  adhere  strictly  to 
these  two  points :  No  worship  shall  be  interfered  with,  either 
directly  by  persecution,  or  indirectly  by  disqualifying  members 
of  certain  sects,  or  by  favoring  one  sect  above  the  others ; 
and  no  church  shall  be  declared  the  church  of  the  state,  or 
"  established  church ;"  nor  shall  the  people  be  taxed  by 
government  to  support  the  clergy  of  all  the  churches,  as  is 
the  case  in  France. 


'  C'onscience  lies  beyond  the  reach  of  government.  "Thoughts  are  free,"  is 
an  old  German  saying.  The  same  must  be  said  of  feelings  and  conscience. 
That  which  government,  even  the  most  despotic,  can  alone  interfere  with,  is  the 
profession  of  religion,  worship,  and  church  government. 

'  See  Primordial  Rights  in  Political  Ethics. 

3  [A  state  in  the  American  Union  might  have  a  state  church,  although  such 
an  event  is  at  present  utterly  improbable.] 

7 


98 


ON  CIVIL  LIBERTY 


In  England  there  is  an  established  church,  and  religious 
qualifications  are  required  for  certain  offices  and  places,  at 
least  in  an  indirect  way.  A  member  of  parliament  cannot 
take  his  seat  without  taking  a  certain  oath  "  upon  the  faith  of 
a  Christian ;"  which,  of  course,  excludes  Jews.  There  is  no 
doubt,  however,  that  this  disqualification  will  soon  be  removed.^ 
Whether  it  will  be  done  or  not,  we  are  nevertheless  authorized 


'  This  disqualification  has  at  length  been  removed,  in  1858.  The  words 
"  upon  the  faith  of  a  Christian"  may  be  left  out  of  the  qualifying  oath  by  a  non- 
Christian.     There  are  now  (1859)  three  Jews  in  the  house  of  commons. 

Since  the  text,  to  which  this  note  is  appended,  was  written,  the  case  of  the 
Madiai  family  has  attracted  the  attention  of  all  civilized  nations  in  the  old  and 
new  world.  The  Madiai  family,  natives  of  Tuscany,  had  become  Protestants, 
and  used  to  read  the  Bible.  No  offence  has  ever  been  charged  to  them,  except 
that  they  read  the  Bible  in  the  vernacular.  Their  imprisonment  and  prosecution 
caused  the  formation  of  a  Society  for  Protecting  the  Rights  of  Conscience,  in 
England,  in  July,  1857.  Archbishop  Whately  presided  at  the  first  meeting,  and 
in  giving  the  scope  of  the  society,  spoke  of  the  topic  in  hand  with  a  degree  of 
discrimination  which  entitles  his  remarks  to  be  reproduced  here.     He  said: 

"We  are  entirely  unconnected  with  conversion,  except  so  far  as  converts  may 
be  exposed  to  persecutions  for  conscience'  sake.  We  enter  into  no  connection 
with  any  society  for  diffusing  religious  knowledge  of  any  kind.  By  rights,  we 
understand  not  necessarily  that  every  one  is  right  in  the  religion  that  he  adopts, 
but  that  his  neighbors  have  no  right  to  interfere  with  him.  We  merely  maintain 
that  a  man  has  a  right,  not  necessarily  a  moral  right,  nor  a  right  in  point  of 
judgment,  but  a  civil  right,  to  worship  God  according  to  his  own  conscience, 
without  suffering  any  hardships  at  the  hands  of  his  neighbors  for  so  doing,  We 
limit  ourselves  entirely  to  those  descriptions  of  persecution  in  which  the  law 
can  give  no  relief.  As  for  assaults  and  violence  of  any  kind,  where  the  law 
provides  and  holds  out  a  remedy,  we  leave  all  persons  to  seek  that  remedy  for 
themselves;  and  we  do  not  undertake  to  guard,  or  to  remunerate,  or  tc  ompen- 
sate  any  persons  who  are  exposed  to  obloquy,  to  curses,  denunciations  of  Divine 
vengeance  uttered  by  men,  to  ridicule,  or  to  any  sort  of  annoyance  of  that  kind. 
They  should  be  taught  to  bear  it  and  to  support  it  with  joy  and  satisfaction 
through  Divine  help,  and  rejoicing  that  they  are  counted  worthy  to  suffer  in  the 
goo'l  cause.  But  when  attempts  are  made  to  compel  men  to  conform  to  what 
they  do  not  conscientiously  believe,  by  the  fear  of  starvation,  by  turning  them 
out  of  employment  when  they  are  honest  and  industrious  laborers,  liy  refusing 
to  liuy  and  yell  or  hold  any  intercourse  with  them,  then  I  tliink  it  is,  and  then 
only,  that  a  society  like  this  ought  to  come  forward,  and  that  all  ]iersons,  what- 
ever religion  they  may  be  of,  or  whether  they  are  of  any  religion  at  all  or  not, 
in  a  feeling  of  humanity  and  justice,  ought  to  look  with  a  favorable  eye  on  such 
a  society  as  yours,  provided  it  keep  itself  within  its  own  proper  bounds." 


A  ND  SELF-  G  O  VERA  ME  NT. 


99 


to  say  that  liberty  of  conscience  forms  one  of  the  elements  of 
Anglican  libert}^  It  has  not  yet  arrived  at  full  maturity  in 
some  portions  of  the  Anglican  race,  but  we  can  discern  it  in  the 
whole  race,  in  whose  modern  history  we  find  religious  toleration 
at  an  earlier  date  than  in  that  of  any  other  large  portion  of 
mankind.  Venice,  and  some  minor  states,  found  the  econom- 
ical and  commercial  benefit  of  toleration  at  an  early  period, 
but  England  was  the  earliest  country  of  any  magnitude  where 
toleration,  which  precedes  real  religious  liberty,  was  established 
While  Louis  XIV.  of  France,  called  the  Great,  "  dragonnaded" 
the  Protestants  on  no  other  ground  than  that  they  would  not 
become  Catholics,  a  greater  king,  William  III.,  declared,  in 
England,  that  "  conscience  is  God's  province."  The  Catholics 
were  long  treated  with  severity  in  England,  but  it  was  more  on 
a  political  ground,  because  the  pope  supported  for  a  long  time 
the  opponents  to  the  ruling  dynasty,  than  on  purely  religious 
grounds. 

There  is  a  new  religious  zeal  manifesting  itself  in  all 
branches  of  the  Christian  church.  The  Catholic  church  seems 
to  be  animated  by  a  renewed  spirit  of  activity,  not  dis- 
similar to  that  which  inspired  it  in  the  seventeenth  centuiy 
by  which  it  regained  much  of  the  ground  lost  by  the  Reforma- 
tion, and  which  has  been  so  well  described  by  Mr.  Ranke. 
The  Protestants  are  not  idle  ;  they  study,  preach,  and  act  with 
great  zeal.  May  Providence  grant  that  the  Anglican  tribe, 
and  all  the  members  of  the  civilized  race,  may  more  and  more 
distinctly  act  upon  the  principle  of  religious  liberty,  and  not 
swerve  from  it,  even  under  the  most  galling  circumstances. 
Calamitous  consequences,  of  which  very  few  may  have  any 
conception  at  this  moment,  might  easily  follow. 

As  to  that  unhappy  and  most  remarkable  sect  called  the 
IMormons,  who  have  sprung  up  and  consolidated  themselves 
within  our  country,  and  who  doubtless  may  become  trouble- 
some when  sufficiently  numerous  to  call  on  us  for  admission 
into  the  Union,  I  take  it  that  the  political  trouble  they  may 
give  cannot  arise  from  religious  grounds.  Whether  they  have 
fallen  back  into  Buddhism,  making    then"    god  a  perfectible 


lOo  ON  CIVIL  LIBERTY 

being,  with  parts  and  local  dwelling,  cannot  become  a  direct 
political  question,  however  it  may  indirectly  affect  society  in 
all  its  parts.  The  potent  questions  which  will  offer  great 
difficulty  will  be,  whether  a  Mormon  state,  with  its  "  theo- 
democratic"  government,  as  they  term  it,  can  be  called  a 
republic,  in  the  sense  in  which  our  constitution  guarantees  it 
to  every  member  of  the  Union.  It  will  then,  probably  for  the 
first  time  in  history,  become  necessary  legally  to  define  what 
a  republic  is.  The  other  difficulty  will  arise  out  of  the  ques- 
tion which  every  honest  man  will  put  to  himself,  Can  we  admit 
as  a  state  a  society  of  men  who  deny  the  very  first  principle, 
not  of  our  common  law,  not  of  Christian  politics,  not  of  modern 
progress,  but  of  our  whole  western  civilization,  as  contra- 
distinguished from  oriental  life — of  that  whole  civilization  in 
which  we  have  our  being,  and  which  is  the  precious  joint  pro- 
duct of  Christianity  and  antiquity — who  disavow  monogamy  ? 

No  one  will  now  deny  that  the  English  parliament  followed 
too  tardily  the  advice  of  those  great  statesmen  who  urged 
long  ago  to  abolish  test  oaths  and  other  religious  impedi- 
ments ;  but  to  judge  impartially,  we  must  not  forget  that  the 
removal  of  disqualifications  in  countries  enjoying  a  high 
degree  of  liberty  is  more  difficult  than  in  despotic  countries, 
where  all  beneath  the  despot  live  in  one  waste  equality. 
Liberty  implies  the  enjoyment  of  important  rights  and  high 
privileges.  To  share  them  freely  with  others  who  until  then 
have  not  enjoyed  them  appears  like  losing  part  of  them.  It 
is  a  universal  psychologic  law.  Neither  religion  nor  color 
constitutes  half  the  difference  in  many  Asiatic  states,  which 
they  establish  in  many  free  countries.  It  must  likewise  be 
remembered  that  liberty  implies  power,  the  authority  of  act- 
ing ;  consequently,  an  admission  to  equality  in  a  free  country 
implies  admission  to  power,  and  it  is  this  which  frequently 
creates,  justly  or  unjustly,  the  difficulty  of  perfect  religious 
equality  in  certain  states  of  society. 

The  end,  however,  which  is  to  be  reached,  and  toward 
which  all  liberty  and  political  civilization  tends,  is  perfect 
liberty  of  conscience. 


AND  SELF-GOVERNMENT.  101 

9.  One  of  the  staunchest  principles  of  civil  liberty  is  the 
firmest  possible  protection  of  individual  property ' — acquired 
or  acquiring,  produced  and  accumulated,  or  producing  and 
accumulating.  We  include,  therefore,  unrestrained  action 
in  producing  and  exchanging,  the  prohibition  of  all  unfair 
monopolies,  commercial  freedom,  and  the  guarantee  that  no 
property  shall  be  taken  except  in  the  course  of  law;  and  the 
principle  that,  in  particular,  the  constant  taking  away  of  part 
of  property,  called  taxation,  shall  not  take  place,  except  by 
the  direct  or  indirect  consent  of  the  owner — the  tax-payer — 
and,  moreover,  that  the  power  of  government  to  take  part  of 
the  propert>%  even  with  the  consent  of  the  payer,  be  granted 
for  short  periods  only,  so  that  the  taxes  must  be  renewed,  and 
may  be  revised  at  brief  intervals.  The  true  protection  of  in- 
dividual property  demands  likewise  the  exclusion  of  confisca- 
tion. For,  although  confiscation  as  a  punishment  is  to  be 
rejected  on  account  of  the  undefined  character  of  the  punish- 
ment, depending  not  upon  itself  but  upon  the  fact  whether 
the  punished  person  has  any  property,  and  how  much,  it  is 
likewise  inadmissible  on  the  ground  that  individual  property 
implies  individual  transmission,^  which  confiscation  totally  de- 
stroy s.3  It  would  perhaps  not  be  wholly  unjust  to  deprive  an 
individual  of  his  property  as  a  punishment  for  certain  crimes, 
if  we  were  to  allow  it  to  pass  to  his  heirs.  We  do  it  in  fact 
when  we  imprison  a  man  for  life,  and  submit  him  to  the  regular 
prison  discipline,  disallowing  him  any  benefit  of  the  property 


»  It  has  been  one  of  the  main  objects  in  my  Essays  on  Labor  and  Property,  to 
show  the  necessity  and  justice  of  individual  property,  and  its  direct  connection 
with  man's  individuality,  of  which  it  is  but  the  reflex  in  the  material  world  around 
him.  Man  suffers  in  individuality,  therefore  in  liberty,  in  the  degree  in  which 
absolutism,  which  is  always  of  a  communistic  nature,  deprives  him  of  the  pos- 
session, enjoyment,  production,  and  e.xchange  of  individual  property.  The 
Essays  treat  of  property  in  a  political,  psychologic,  and  economical  point  of 
view. 

*  The  subject  of  individual  inheritance  has  also  been  treated  at  length  in  the 
Essays  mentioned  in  the  preceding  note. 

3  [Our  author  of  course  cannot  object  to  fines,  one  of  the  most  universal  and 
most  efficacious  of  penalties.] 


I02  OX  CIVIL  LIBERTY 

he  may  possess;  but  it  is  unjust  to  deprive  his  children  or 
other  heirs  of  the  individual  property,  not  to  speak  of  the 
appetizing  effect  which  confiscation  of  property  has  often 
produced  upon  governments. 

The  English  attainder  and  corruption  of  blood,  so  far  as  it 
affects  property,  is  hostile  to  this  great  principle  of  the  utmost 
protection  of  individual  property,  and  has  come  down  to  the 
present  times  from  a  period  of  semi-communism,  when  the 
king  was  considered  the  primary  owner  of  all  land.  Corrup- 
tion of  blood  is  distinctly  abolished  by  our  constitution. 

Individual  property  is  coexistent  with  government.  Indeed, 
if  by  gov^ernment  be  understood  not  only  the  existence  of  any 
authority,  but  rather  the  more  regular  and  clearly  established 
governments  of  states,  property  exists  long  before  government, 
and  is  not  its  creature ;  as  values  exist  long  before  money,  and 
money  long  before  coin,  and  coin  before  government  coin.  We 
find,  therefore,  that  the  rightful  and  peaceful  enjoyment  of  in- 
dividual property  is  not  mentioned  as  a  particular  item  of  civil 
liberty,  as  little  as  the  institution  of  the  family,  except  when 
communistic  ^  ideas  have  endangered  it,  or,  in  particular  cases, 


'  I  shall  not  have  room  to  give  a  whole  chapter  to  the  subject  of  communism, 
or  rather  a  single  chapter  would  be  wholly  insufficient  on  this  interesting  subject, 
which,  moreover,  belongs  to  general  political  philosophy,  rather  than  to  our 
branch.  I  shall  mention,  therefore,  this  only,  that  I  use  in  these  pages  the  word 
communism  in  its  common  adaptation,  meaning  a  slate  of  society  in  which  indi- 
vidual property  is  abolished,  or  in  which  it  is  the  futile  endeavor  of  the  lawgiver 
to  abolish  it,  such  as  hundreds  of  attempts  made,  in  ancient  times,  in  the  middle 
ages,  and  in  modern  epochs,  in  Asia  and  in  Europe,  among  the  Spartans,  the 
anabaptists,  and  French  communists.  I  do  not  take  here  the  term  communism 
in  that  philosophical  sense  according  to  which  every  state,  indeed  every  society 
whatever,  necessarily  consists  of  the  two  elements  of  individualism  and  social- 
ism. The  grave  error  of  the  socialist  is  that  he  extends  the  principle  of  socialism, 
correct  in  itself,  to  the  sphere  where  individualism  or  separatism,  equally  correct, 
ought  to  determine  our  actions.  The  socialist  is  as  mistaken  an  enthusiast  as  the 
individualist  would  be,  who,  forgetting  the  element  of  socialism,  should  carry  his 
principle  to  the  extreme  of  disjunctive  egotism,  and  insist  upon  a  dissolution  of 
government  and  a  disavowal  of  the  sovereignty  of  society  in  political  matters.  It 
is  instructive  to  observe  how,  also,  in  this  case,  the  extremes  meet;  for  wotks 
have  been  actually  published  by  socialists  which  wind  up  with  an  entire  des»»al 
of  government,  and  an  avowal  of  "  individual  sovereignty." 


AND  SELF-GOVERNMENT.  103 

when  private  property  must  be  given  up  for  the  public 
benefit,'  and  laws  or  constitutions  settle  that  it  shall  not  be 
done  except  for  equivalents  given  by  the  public  through 
government.^ 

Our  constitution  goes  farther.'  It  distinctly  enacts  that  "  no 
state  shall  pass  any  law  impairing  the  obligation  of  contracts," 
which  includes  contracts  with  governments,  and  not  only 
common  contracts,  but  rights  conferred  for  equivalents. ^ 

The  right  of  self-taxation  has  been  mentioned  as  a  guarantee 
of  private  property ;  for  no  matter  what  form  taxation  may 
assume,  it  must  always  consist  in  the  appropriation  of  private 
property  for  public  ends.  Taxation  has,  however,  another, 
purely  political  and  highly  important  meaning,  and  we  shall 
consider  it  under  this  aspect  in  another  part  of  this  work. 

Every  single  subject  here  mentioned,  monopolies,'*  freedom 
of  trading,  freedom  of  home  production,  freedom  of  exchange, 
possession  of  property,  taxation  and  confiscation — each  one 
has  a  long  history,  full  of  struggle  against  error  and  govern- 


'  See  the  constitution  of  the  French  Republic  of  1848,  in  the  Appendix.  It 
contains  a  paragraph  acknowledging  private  property,  the  family,  etc.  It  was 
right  to  insert  it,  under  the  circumstances.  If  the  Spartans  had  ever  reformed 
their  government,  and  passed  from  their  socialism  to  individualism,  they  would 
have  been  justified  in  proclaiming  the  sanctity  of  the  family  and  the  acknowl- 
edgment of  private  cookery,  however  ludicrous  this  might  be  under  other 
circumstances. 

'  Points  belonging  to  this  subject  and  its  primordial  character  were  pronounced 
with  clearness  in  the  late  pleadings  in  the  French  courts,  when  it  was  endeavored 
to  show,  unfortunately  in  vain,  that  Louis  Napoleon  had  no  right,  even  as  a  dic- 
tator, to  confiscate  the  private  property  of  the  Orleans  family,  and  that  the  courts 
were  competent  to  restore  it  to  the  lawful  owners. 

3  See  Judge  Story,  in  his  Commentaries  on  the  Constitution  of  the  United 
States,  and  his  Opinion,  as  well  as  Chief-Justice  Marshall's'  in  the  celebrated 
Dartmouth  Case,  4  Wheaton  R.  518,  and  also  Mr.  Webster's  Works  for  his 
argument  in  that  case. 

The  English  go  much  farther  than  ourselves,  not  indeyd  in  principle,  but  be- 
cause they  consider  many  rights,  places,  and  privileges  as  vested  property  which 
we  by  no  means  consider  as  such. 

■  ♦  An  act  of  parliament  under  James  I.  (21  James  I.  i.  3)  prohibited  all  mono- 
polies granted  by  the  crown,  after  the  courts  had  repeatedly,  even  under  Elizabeth, 
declared  certain  monopolies  null  and  void. 


I04 


ON   CIVIL  LIBERTY 


merit  interference,  running  through  many  centuries  and  even 
a  thousand  years.  On  each  a  separate  and  instructive  history 
might  be  written.  Each  shows  the  continued  course  of 
gradually,  though  very  slowly,  expanding  freedom.  Nor 
has  this  history  of  development  reached  its  close,  although 
it  has  attained  to  that  period  in  which  we  acknowledge  the 
highest  protection  of  individual  property  as  an  element  of  our 
freedom. 

That  the  so-called  repudiation — it  is  always  unfortunate  and 
suspicious  when  offences  that  have  long  received  their  proper 
name  are  stamped  with  a  new  and  apparently  innocent  one ; 
still  worse  is  it  when  the  error  is  elevated  into  a  commendable 
act ;  and  Bacon  is  right  when  he  says,  Pessima  enim  res  est 
errorum  apotheosis — that  repudiation  is  a  violation  of  the 
sacred  principle  we  treat  of,  no  one  now  will  have  the  hardihood 
to  deny.  Still  it  is  true  that  abroad  it  is  almost  universally 
treated  erroneously,  as  well  in  regard  to  its  causes  as  to  its 
extent,  the  inferences  drawn  from  it  regarding  republican 
government,  and  the  supposed  novelty  of  the  case.  We  could 
give  a  long  list  of  monarchical  repudiations.  But  we  do  not 
claim  this  as  an  excuse.  The  worst  of  all  arguments  is, 
although  in  constant  use,  from  the  school-boy  to  princes, 
presidents,  and  writers  on  national  affairs,  that  things  are 
equally  bad  or  worse  with  others.  Right  and  truth,  wrong 
and  falsehood,  remain  forever  what  they  are  ;  and  Mr.  Webster 
pointedly  said  at  the  time  of  repudiation,  in  the  senate  of  the 
United  States  :  "  You  may  repudiate,  but  that  does  not  pay 
your  debts."  Repudiation  was,  and  remains,  a  serious  wrong, 
but  its  immorality  does  not  authorize  to  draw  wrong  conclu- 
sions, and  we  totally  deny  the  correctness  of  the  assumed  facts 
and  inferences  drawn  from  them  by  Sir  A.  Alison.^ 


»  Paragraph  fifty-nine,  chap.  i.  vol.  i.  of  History  of  Europe  from  the  Fall  of 
Napoleon  to  the  Accession  of  Louis  Philippe.  Possibly  an  opportunity  may 
offer  itself  some  day  to  treat  of  this  melancholy  subject  at  length  and  in  all  its 
details. 

I  cannot  forbear,  however,  to  copy  a  passage  of  Sir  A.  Alison,  viz. :  "  The 
principal  states  of  the  Union  have,  by  common  consent,  repudiated  their  state 


AND  SELF-GOVERNMENT.  105 

10.  There  can  be  no  individual  liberty  where  every  citizen 
is  not  subject  to  the  law,  and  where  he  is  subject  to  aught 
else  than  the  law — that  is,  public  opinion  organically  passed 


debts  as  soon  as  the  storms  of  adversity  blew ;  and  they  have  in  some  instances 
resumed  the  payment  of  their  interest  only  when  the  sale  of  lands  they  had 
wrested  from  the  Indians  afforded  them  the  means  of  doing  so,  without  recurring 
to  the  dreaded  horrors  of  direct  taxation" — and  to  add  that  there  is  not  one  fact 
in  this  whole  passage.  The  principal  states  did  not  repudiate;  the  repudiation 
was  not  by  common  consent ;  no  land  has  been  wrested  from  the  Indians  and 
sold  for  the  benefit  of  the  states,  and  direct  taxation  exists  in  most  states,  perhaps 
in  all  the  states  to  some  extent.  Many  of  those  readers  who  have  been  my  pupils 
will  remember  that  for  a  number  of  years  I  was  in  the  habit  of  delivering  a  course 
of  lectures  on  Repudiation,  in  which,  I  trust,  I  showed  no  disposition  to  mince 
matters;  but  to  repudiate  the  representative  principle  as  Sir  Archibald  does  when 
treating  of  Repudiation,  and  to  present  the  latter  as  a  natural  consequence  of 
republicanism,  transcends  the  bounds  of  reason.  What  element  in  the  English 
polity,  we  would  ask,  is  it  that  makes  English  credit  so  firm?  Is  it  the  monarch- 
ical? This  cannot  well  be,  for  many  monarchs  have  more  than  loosely  dealt  with 
credit,  public  funds,  and  even  private  property.  I  believe,  on  the  contrary,  that 
the  credit  of  England  mainly  rests  on  her  representative,  her  republican  principle, 
I  do  not  mean  to  say  that  people  lend  their  money  just  because  she  has  a  parlia- 
ment. What  I  mean  is  that  the  reliance  of  the  world  on  the  good  faith  of  Eng- 
land in  money  matters  has  been  built  up  by  her  parliamentary  government,  and 
would  not  have  been  built  up  without  it. 

The  Dutch  Republic  enjoyed  great  credit,  while  the  Regent  of  France,  and 
his  council  of  state,  seriously  debated  whether  the  "  new  government"  was 
obliged  to  acknowledge  the  debts  of  the  defunct  Louis  XIV.  One  of  the  worst 
cases  of  repudiation  was  exhibited  in  England  long  before  the  unhappy  laxity 
became  manifest  in  our  land.  The  Prince  of  Wales  (George  IV.)  and  two  of 
his  brothers,  the  Dukes  of  York  and  Clarence,  desired  to  escape  paying  a  loan 
of  3,600,000  guilders  which  they  had  made  in  Holland,  through  the  banker 
Thomas  Hammcrsly.  When  the  bond-holders  came  to  England  to  enforce  pay- 
ment, Sir  Arthur  Pigott,  attorney-general  of  the  Duchy  of  Cornwall,  acting  for 
the  Prince  of  Wales,  stated  in  the  court  that  he  had  never  heard  of  the  bonds, 
which  was  absolutely  untrue.  All  London,  and  indeed  all  England,  knew  of 
it.  The  arguments  were  worthy  of  any  Mississippi  repudiator,  such  as,  The 
present  bond-holders  are  not  the  original  lenders;  war  has  broken  out.  Ulti- 
mately the  Dutch  bond-holders  who  were  in  England  were  arrested  under  the 
alien  law  and  put  on  board  a  vessel,  where,  English  writers  say,  1  cannot  say 
with  what  degree  of  truth,  they  perished,  though  none  of  the  crew  died. 

Sir  A.  Alison  says  somewhere  in  his  writings,  that  the  richest  men  in  the  city 
of  New  York  do  not  dare  to  have  stately  fronts  for  their  houses,  however  costly 
the  interior  maybe,  irom  fear  of  displeasing  the  democracy.  Truth  and  essentia] 
progress  are  never  promoted  by  wrong  or  false  argument. 


I06  ON  CIVIL   LIBhRTY 

into  public  will.'  This  we  call  the  supremacy  of  the  law.' 
All  subjective  arbitrariness  is  contrary  to  freedom.  The  law 
of  a  freeman  is  a  general  rule  of  action,  having  grown  out  of 
the  custom  of  the  people,  or  having  been  laid  down  by  the 
authority  empowered  by  the  people  to  do  so.  A  law  must  be 
a  rule  which  does  not  violate  a  superior  law  or  civil  principle, 
it  must  be  made  before  the  case  to  which  it  is  applied  has 
occurred,  (without  which  it  cannot  be  mens  sine  effectu,  as  the 
ancients  called  the  law,)  and  it  must  be  truly  as  well  as  plainly 
published. 

The  citizen,  therefore,  ought  not  to  be  subject  to  ex  post 
facto  laws,3  to  a  "  government  by  commissions,"  nor  to 
extraordinary  courts '^  of  justice,  to  a  dispensing  power  in  the 


'  We  shall  presently  say  more  on  the  all-important  word  Law;  but  for  an 
extensive  discussion  of  the  subject  I  must  refer  the  reader  to  the  Political 
Kthics. 

2  It  will  hardly  be  necessary  to  state  that  the  term  supremacy  of  the  law  has 
a  meaning  only  when  by  law  we  understand  general  and  pre-existing  rules  of 
action  expressing  public  will.  Whether  the  name  of  law  be  given  to  personal 
decrees  and  arbitrary  decisions,  is  not  of  the  smallest  importance.  Napoleon,  at 
St.  Helena,  expressed  his  surprise  at  having  been  called  a  despot;  "  I,"  said  he, 
"  who  have  always  acted  by  law  !"  This  forcibly  reminds  us  of  a  prominent  French 
paper,  the  Uiiivers,  which  lately  stated  that  it  was  decidedly  in  favor  of  repre- 
sentative  government,  and  that  it  was  only  necessary  to  know  what  is  understood 
by  representative  government.  The  Univers — so  said  the  paper  itself — under- 
.stands  by  this  term  a  legislative  corps,  which  represents  the  government.  I  have 
known,  in  an  official  capacity,  a  patient  in  a  hospital  for  the  insane,  who  perse- 
veringly  maintained  that  the  difference  between  him  and  me  consisted  solely  in 
the  name.  "  Suppose,"  he  used  to  say,  "  we  patients  vote  that  we  are  sane  and 
the  out-door  party  is  crazy?"  "  Don't  you  see?"  he  would  add,  with  a  knowing 
look. 

3  Our  constitution  prohibits  them. 

*  By  extraordinary  courts  of  justice  are  meant,  in  this  connection,  courts  of  an 
extraordinary  composition,  not  those  that  are  simply  directed  to  sit  at  an  unusual 
time.  The  difference  between  justice,  that  is,  right  distributed  among  men  by 
lawful  and  regularly  appointed  judges  on  the  one  hand,  and  the  trials  by  com- 
missioners on  the  other  hand,  is  well  pointed  out  by  an  anecdote,  such  as  Plutarch 
would  not  have  disdained  to  give  in  his  writings.  Montaign,  grand  master  of  the 
household  of  Charles  VI.,  was  tried,  tortured,  and  executed  by  Commissioners. 
He  was  buried  in  the  church  of  the  Celestines,  and  when  Francis  I.  came  to  see 
his  tomb,  the  king  said,  "  This  Montaign  has  been  condemned  by  justice."    "  No, 


AND  SELF-GOVERNMENT. 


107 


executive,  (so  much  insisted  on  by  the  Stuarts,  and,  indeed,  by- 
all  rulers  who  claim  to  rule  by  a  higher  law  than  the  law 
of  the  land,)  nor  to  mere  "  proclamations"  of  the  crown  or 
executive,  nor  to  the  dictation  of  mobs,  nor  of  any  people 
who  claim  to  be  the  people ;  nor,  indeed,  to  any  dictates  of  the 
people  except  in  its  political,  that  is  in  its  organized  and 
organic,  capacity. 

All  the  modern  constitutions  by  which  it  is  endeavored  to 
transplant  Anglican  liberty,  declare  that  the  citizen  shall  be 
subject  to  his  "  natural  courts"  only.  The  charter  of  Louis 
XVIII.  prohibited  cours  prevotales.^  It  had  become  very 
necessary  to  point  out  in  the  charter  that  every  one  should 
be  judged  by  his  "natural  court,"  because  the  extraordinary 
courts  had  been  a  great  grievance  in  former  times,  and  because 
Napoleon  had  introduced  le  jugement  admin istratif,  although 
lettres  de  cachet  remained  abolished  in  his  reign.  An  admin- 
istrative or  executive  judgment  simply  meant  decisions,  im- 
prisonment or  other  punishments,  although  the  courts  had 
absolved  the  prisoner,  or  taking  effect  without  the  action  of 
any  court.     It  is  nothing  less  than  plain  police  government. 

The  American  Declaration  of  Independence  has  a  passage 
referring  to  the  subject  of  "  natural  courts."  It  enumerates  as 
one  of  the  grounds  of  justification  for  separating  from  England, 
that  the  government  has  "  transported  us  beyond  the  seas  to 
be  tried  for  pretended  offences." 

All  continental  governments  which  were  bent  on  defeating 
the  action  of  the  new  constitutions,  even  while  they  existed, 
resorted  to  declaring  large  cities  and  entire  districts  in  "  a 
state  of  siege,"  thus  subjecting  them  to  martial  law.  All  abso- 
lute governments,  whether  monarchical  or  democratic,  have 

sire,"  answered  the  simple  monk  who  guided  the  king,  "  he  was  condemned  by 
Commissioners."  Histoire  du  Parlement  de  Paris,  Amsterdam,  1769,  ch.  4. 
Commissioners  as  judges  form  a  "  packed"  court,  do  not  feel  lasting  responsi- 
bility, and,  in  cases  of  importance  to  the  executive,  act  on  the  foregone  con- 
clusion almost  as  distinctly  as  the  "judges"  of  the  Duke  d'Enghien  did.  In 
this  consists  the  danger  of  courts-martial,  when  established  for  the  ordinary 
courts. 

*  See  the  French  charter  in  the  Appendix. 


I08  ON  CIVIL  LIBERTY 

ever  found  the  regular  course  of  justice  inconvenient,  and  made 
war  upon  the  organic  action  of  the  law,  which  proves  its 
necessity  as  a  guarantee  of  liberty. 

It  is  obvious  that,  whatever  wise  provisions  a  constitution 
may  contain,  nothing  is  gained  if  the  power  of  declaring 
martial  law  be  left  in  the  hands  of  the  executive ;  for  de- 
claring martial  law,  or  proclaiming  a  place  or  district  in  a 
state  of  siege,  simply  means  the  suspension  of  the  due  course 
of  law,  of  the  right  of  habeas  corpus,  of  the  common  law,  and 
of  the  action  of  courts.  The  military  commander  places  the 
prisoners  whom  he  chooses  to  withdraw  from  the  ordinary 
courts  before  courts-martial.  There  were  many  French  de- 
partments in  "  a  state  of  siege"  before  the  coup  d'etat.  After 
it,  all  France  may  be  said  to  have  been  so. 

In  England,  when  there  is  a  rebellion  or  wide-spread  dis- 
order, threatening  life  and  property,  a  regular  act  of  parlia- 
ment is  passed,  suspending  the  habeas  corpus.  The  act  states 
the  necessity  or  reasons,  and  the  time  of  its  duration.  This 
last  point  is  of  great  importance.' 

We  have  seen  already  under  what  circumstances  our  con- 
stitution permits  the  suspension  of  the  habeas  corpus  ;  and  that 
this  cannot  be  done  by  the  president  alone,  but  by  congress 
only,  need  hardly  be  mentioned.^ 

It  has  been  necessary  to  mention  here  the  supremacy  of 
the  law  as  a  peculiar  guarantee  of  personal  liberty.  We  shall 
return  to  the  subject,  and  consider  it  in  its  wider  relations. 

II.  The  preceding  guarantee  of  the  supremacy  of  the  law 
leads  to  a  principle  which,  so  far  as  I  know,  it  has  never  been 
attempted  to  transplant  from  the  soil  inhabited  by  Anglican 
people,  and  which  nevertheless  has  been  in  our  system  of  liberty 

'  The  act  by  which  martial  law  was  declared  in  Ireland,  during  the  rebellion 
in  1798,  can  be  seen  in  Tytler's  Essay  on  Military  Law,  appendix,  No.  6.  I 
copy  this  reference  from  an  article,  Martial  Law,  in  Political  Dictionary, 
London,  1846. 

'  [For  the  question  raised  in  our  late  war  as  to  the  president's  power  to  do 
this,  and  for  the  limitation  that  the  suspension  of  habeas  corpus  allows  no  illegal 
arrests,  but  only  the  detention  of  a  prisoner  arrested  for  good  cause,  comp.  Pome- 
roy's  Constit.  Law,  p.  475.] 


J 


AND  SELF-GOVERNMENT.  109 

the  natural  production  of  a  thorough  government  of  law,  as 
distinguished  from  a  government  of  functionaries.  It  is  so 
natural  to  the  Anglican  race  that  few  think  of  it  as  essentially 
important  to  civil  liberty,  and  it  is  of  such  vital  importance 
that  none  who  have  studied  the  acts  of  government  elsewhere 
can  help  recognizing  it  as  an  indispensable  element  of  civil 
liberty. 

It  is  this  :  that,  on  the  one  hand,  every  officer,  however  high 
or  low,  remains  personally  answerable  to  the  affected  person 
for  the  legality  of  the  act  he  executes,  no  matter  whether  his 
lawful  superior  has  ordered  it  or  not,  and  even  whether  the 
executive  officer  had  it  in  his  power  to  judge  of  the  legality 
of  the  act  he  is  ordered  to  do,  or  not;  and  that,  on  the  other 
hand,  every  individual  is  authorized  to  resist  an  unlawful  act, 
whether  executed  by  an  otherwise  lawfully  appointed  officer 
or  not.  The  resistance  is  made  at  the  resister's  peril.  In  all 
other  countries,  obedience  to  the  officer  is  demanded  in  all 
cases,  and  redress  can  only  take  place  after  previous 'obedience.^ 
Occasionally,  this  principle  acts  harshly  upon  the  officer;  but 
we  prefer  this  inconvenience  to  the  inroad  which  its  abandon- 
ment: would  make  in  the  government  of  law.  We  will  not 
submit  to  individual  men,  but  only  to  men  who  are,  and  when 
they  are,  the  organs  of  the  law.^  A  co7ip  d'etat,  such  as  we 
have  lately  seen  in  France,  would  not  be  feasible  in  a  nation 
accustomed  to  this  principle.  All  the  answer  which  the  police 
officers  gave  to  men  like  General  Cavaignac,  who  asked  them 
whether  they  were  aware  that  they  committed  a  high  crime 
in  arresting  a  representative  of  the  people,  was,  that  they  had 
orders  from  their  superior,  and  had  nothing  to  do  with  the 
question  of  legality.  It  is  obvious  how  much  this  peculiar 
Anglican  principle  heightens  the  importance  of  obedience  to 
the  officer,  representing  the  law,  and  the  law  alone.  Lawless- 
ness in  this,  as  in  all  other  cases,  is  peculiarly  incompatible 
with  the  spirit  of  Anglican  freedom. 


'  Extreme  cases,  as  a  matter  of  course,  would  be  allowed  to  form  exceptions. 
»  I  must  again  refer  to  the  Political  Ethics,  chapter  on  Obedience  to  the  Law. 


no  ON  CIVIL   LIBERTY 

As  an  instance  of  the.  opposite  to  the  French  principle  of 
that  huge  institution  called  gcndannerie,  the  following  simple 
case  may  be  taken  : 

A  sheriff,  provided  with  the  proper  warrant,  has  the  right, 
after  request  and  denial,  to  open  the  house  door,  forcibly  to 
open  it,  if  a  third  party  has  taken  refuge  in  it,  or  sent  his 
goods  there.  "Every  man's  house  is  his  castle,"  will  not 
protect  any  one  but  the  bona  fide  dweller  in  it.  Nevertheless, 
the  sheriff  provided  with  his  legal  warrant  does  it  at  his  own 
peril ;  for,  if  he  break  open  the  house,  however  well  his  suspi- 
cion may  be  grounded,  and  neither  the  party  nor  the  goods 
sought  for  be  there,  the  sheriff  is  a  trespasser,  and  as  such 
answerable  to  the  inhabitant  of  the  house  before  the  courts  of 
the  land.  This  may  be  inconvenient  in  single  cases.  It  may 
be  that  the  maxim  which  has  been  quoted  has  "been  carried 
as  far  as  the  true  principles  of  political  practice  will  warrant — 
perhaps  beyond  what  in  the  scale  of  sound  reason  and  good 
policy  they  will  warrant."  '  I  doubt  it,  whatever  the  inconve- 
nience in  single  cases  may  be.  All  law  is  inconvenient  in  some 
cases ;  but  even  if  this  opinion  were  founded,  how  august,  on 
the  other  hand,  appears  the  law — I  do  not  mean  a  single 
statute,  but  the  whole  self-evolving  system  of  a  common  law 
of  the  land — that  errs  on  the  side  of  individual  liberty  against 
the  public  power  and  the  united  weight  of  government ! 

This  Anglican  principle  might  be  supposed  by  those  who 
are  not  familiar  with  it,  that  fear  of  resolute  action  in  the 
officer  would  be  the  consequence.  But  this  is  not  the  case, 
as  experience  in  England  and  the  United  States  sufficiently 
proves.  When  magistrates  and  officers  who,  according  to 
their  sphere  of  action,  ought  not  to  be  elective,  are  made 
elective,  timidity  or  time-serving  encroaches  indeed  upon  the 
resolute  performance  of  the  officer's  duty ;  but  this  has  nothing 
to  do  with  the  principle  here  treated.  Nor  is  it  denied  that 
exceptions  may  take  place.     A  police  officer  lately  stated  in 


'  Sir  M.  Foster,  Discourse  of  Homicide,  p.  319.     I  quote  from  Broom's  Legal 
Maxims. 


AND  SELF-GOVERNMENT.  HI 

open  court  in  London,  when  asked  why  he  had  not  performed 
a  certain  act  clearly  lying  within  the  sphere  of  his  duty,  that  it 
was  so  difficult  for  him  to  know  what  was  lawful  for  him  to 
do,  according  to  the  opinion  of  the  magistrate,  that  he  had 
preferred  not  to  act.  No  machinery  works  without  occasional 
friction.  Compare  with  this  the  ruthless  European  continental 
police,  and  choose.  The  reader  will  find  at  the  end  of  the  foot- 
note appended  to  this  page  an  amusing  illustration  of  the  fact 
that  monarchical  absolutism  does  not  necessarily  give  freedom 
or  boldness  of  action  to  officers.'' 

The  reader  has  seen  from  the  passage  on  warrants,  which  I 
gave  in  a  preceding  part  of  this  work,  how  far  this  principle 
is  carried  in  the  case  of  resisting  an  officer,  even  to  the  killing 
him,  if  his  warrant  be  not  wholly  correct.  Another  proof  of 
the  uniform  acknowledgment  of  this  principle  and  essential 
pillar  of  civil    liberty  is    this,  that  when   a   British  minister 


'  The  very  opposite  to  the  Anglican  principle,  that  each  officer  remains  re- 
sponsible for  the  legality  of  his  own  acts,  prevails  ii^  China  and  Japan,  and  prob- 
ably in  all  thoroughly  systematized  Asiatic  despotisms.  The  superior  officer  is 
punished  for  the  offence  and  even  for  the  misfortune  of  the  inferior,  or  for  the 
accident  which  may  have  befallen  the  latter.  The  blows  with  the  bamboo,  which 
in  China  go  down  from  the  superior  through  many  grades  to  the  inferior,  are 
well  known.  Before  the  late  opening  of  the  Japanese  ports  to  the  Americans 
and  Europeans,  a  Christian  vessel  was  driven  on  the  shores  of  Japan.  The 
governor  ripped  open  his  belly,  and  the  viceroy  in  whose  province  the  wreck 
had  happened  was  imprisoned  for  one  hundred  days,  although  he  was  at  the 
time  a  hundred  miles  from  the  place  of  the  disaster.  There  is  also,  however,  in 
;hese  cases,  to  be  taken  into  consideration  the  confusion  of  moral  laws,  and  phys- 
ical laws,  and  fate,  which  pervades  the  whole  Chinese  code,  the  ethics  of  Japan, 
the  moral  code  of  all  early  nations,  and  which  we  find  in  the  early  mythology  of 
all  nations.  The  earliest  period  of  Greek  history  and  mythology  furnishes  us 
with  many  illustrations. 

Mr.  King,  in  his  Notes  of  the  Voyage  of  the  Morrison,  New  York,  1839,  gives 
the  following  anecdote :  "  We  had  inquired  of  the  Japanese  how  their  officers 
were  to  be  distinguished;  whether  they  wore  any  badges  besides  the  ever-famous 
'two  sabres.'  The  answer  was,  If  you  see  a  man  come  on  board  that  trembles 
veiy  much,  he  is  a  mandarin." 

The  student  must  take  care  not  to  consider  the  fining  of  companies  for  want  of 
caution,  skill,  or  honesty  in  the  persons  or  officers  employed  by  them,  (now  so 
common  in  consequence  of  railway  accidents,)  as  invalidating  the  principle  laid 
down  in  the  text. 


112  ON  CIVIL  LIBERTY 

obtains  an  act  of  indemnity,  which  is  an  act  of  impunity  foj 
certain  illegal  acts,  which,  nevertheless,  necessity  demanded, 
the  act  of  indemnity  is  never  for  him  alone,  but  it  expresses 
that  the  act  shall  also  cover  what  the  inferior  officers  have 
done  by  the  direction  of  the  minister  in  the  premises/ 

In  conclusion,  I  would  remark  that  it  is  wholly  indifferent 
who  gives  the  order.  If  it  be  illegal,  the  person  who  executes 
it  remains  responsible  for  the  act,  although  the  president  or 
the  king  should  have  ordered  it,  or  the  offending  person 
should  be  a  soldier  obeying  his  commander.  It  is  a  stern  law, 
but  it  is  a  sacred  principle,  a  strict  government  of  law  cannot 
dispense  with  it,  and  it  has  worked  well. 


'  For  instance,  in  the  scarcity  of  grain  in  the  year  1766,  Chatham  prohibited 
exportation  of  grain.  When  parliament  met,  he  read  a  passage  from  Locke,  to 
show  that  what  he  had  done  was  not  legal  yet  right.  Indemnity  was  passed  for 
him  and  those  who  had  acted  under  him.  In  1818,  ministers  asked  and  obtained 
indemnity  for  the  suspension  of  habeas  corpus,  for  themselves  and  magistrates 
under  them.  Many  other  instances  might  be  given.  See  Lieber's  Legal 
and  Political  Hermeneutics,  note  to  page  79.  Acts  of  indemnity  cannot  be 
passed  with  us,  because  we  have  a  constitution  of  which  the  legislature  itself  is 
but  the  creature,  and  we  cannot  pass  ex  post  facto  laws.  All  that  remains  for  us 
to  do  in  cases  of  absolute  necessity  or  transcendent  utility  is  to  pass  over  the 
occurrence  in  silence;  or  congress  may  show  its  concurrence  by  aiding  in  the 
act.  This  was  the  case  when  Mr.  Jefferson  purchased  the  territory  of  Louisiana. 
Still,  congress  cannot  make  the  act  constitutional;  though  the  silence  of  con- 
gress, or  the  countenance  given  by  it  to  an  act,  gives  it  such  apparent  legality,  that 
we  find  in  the  present  time  (1859)  many  men  calling  themselves  adherents  to  the 
strictest  interpretation  of  the  constitution,  and  insisting  on  liberal  interpretation, 
urging  the  purchase  of  the  island  of  Cuba,  as  if  the  constitution,  which  itself 
declares  that  it  permits  nothing  but  what  it  distinctly  and  positively  grants,  had 
allowed  the  purchase  of  foreign  territoiy. 


AND  SELF-GOVERNMENT.  113 


CHAPTER   XI. 

QUARTERING   SOLDIERS. THE   ARMY. 

12.  Governments,  if  not  very  closely  hedged  in,  have  it  in 
their  power  to  worry  citizens  into  submission  by  many  indi- 
rect methods.  One  of  these,  frequently  resorted  to  since  the 
introduction  of  standing  armies,  is,  that  soldiers  are  billeted 
with  the  disaffected  citizens.  An  insolent  soldiery,  supported 
by  the  executive,  find  a  thousand  ways  of  annoying,  insulting, 
and  ruining  the  family  with  whom  they  are  quartered.  It  has 
been  deemed  necessary,  therefore,  specially  to  prohibit  the 
quartering  of  soldiers  with  citizens,  as  an  important  guarantee 
of  civil  liberty.  The  English  Bill  of  Rights,  "  declaring  the 
rights  and  liberties  of  the  subject,"  of  1688,  enumerates  in 
the  preamble,  as  one  of  the  proofs  that  James  II.  "did  endeavor 
to  subvert  and  extirpate"  .  .  .  "the  laws  and  liberties  of  this 
kingdom,"  his  "  raising  and  keeping  a  standing  army  within 
the  kingdom  in  time  of  peace,  without  consent  of  parliament, 
and  quartering  soldiers  contraiy  to  law."  ^  It  is  in  England, 
therefore,  a  high  offence  to  quarter  soldiers  without  consent  of 
parliament;  and  the  Constitution  of  the  United  States  ordains 
that  "  no  soldier  shall  in  time  of  peace  be  quartered  in  any 
house  without  the  consent  of  the  owner,  nor  in  time  of  war, 
but  in  a  manner  to  be  prescribed  by  law."  The  framers  of  the 
constitution,  it  will  be  observed,  were  very  exact  in  drawing 
up  this  paragraph. 

Persons  not  versed  in  the  history  of  civil  liberty  and  of 
progressive  absolutism  might  be  surprised  at  this  singling  out 
of  quartering  soldiers  in  documents  of  such  elevated  character 


'  [See  the  Petition  of  Right  in  Appendix  V.,  and  Forster's  Life  of  Sir  John 
Eliot,  for  earlier  complaints  nl  out  this  old  outrage.] 


114 


ON  CIVIL  LIBERTY 


and  condensed  national  demands  as  the  Bill  of  Rights  and  the 
American  Constitution  are;  but  the  " dragonnades"  of  Louis 
XIV.  in  France,  of  James  II.  in  Scotland,  and  those  of  more 
recent  and  present  date  in  certain  countries,  furnish  sufficient 
justification  for  this  specific  guarantee. 

13.  The  preceding  safeguard,  although  justly  pointed  out 
separately,  is  still  only  part  of  the  general  one  that  the  forces 
must  be  strictly  submitted  to  the  law.  The  navy  cannot  be, 
in  its  nature,  so  formidable  an  instrument  in  the  hands  of  the 
executive  as  the  army.  It  cannot  be  brought  to  bear  upon 
the  people ;  it  is  not  centralized  in  its  character,  and  it  cannot 
surround  the  ruler.  There  are  many  other  reasons  why  the 
navy,  the  floating  bulwarks  of  a  nation,  has  always  shown  an 
inherent  affinity  with  the  popular  element,  and  why  free  nations 
only  can  have  efficient  navies  or  merchant  fleets.^ 

It  is  far  different  with  the  land  forces.  Ever  since  standing 
armies  have  been  established,  it  has  been  necessary,  in  various 
ways,  to  prevent  the  army  from  becoming  independent  of  the 
legislature.  There  is  no  liberty,  for  one  who  is  bred  in  the 
Anglican  school,  where  there  is  not  a  perfect  submission  of 
the  army  to  the  legislature  of  the  people.  We  hold  it  to  be 
necessary,  therefore,  to  make  but  brief  appropriations  for  the 
army.  The  King  of  England  cannot  raise  an  army,  or  any 
part  of  it,  without  act  of  parliament ;  ^  the  army-estimates  are 
passed  for  one  year  only ;  so  that,  were  parliament  to  refuse 
appropriations,  after  a  twelvemonth  the  army  would  be  dis- 
solved. The  mutiny-bill,  by  which  power  is  given  to  the  king 
to  hold  courts-martial  for  certain  offences  in  the  army,  is  like- 
wise passed  for  a  year  only;    so  that,  without  repassing  it, 


'  [The  individual  nature  of  the  seaman  is  developed  by  many  of  his  duties, 
while  armies  act  chiefly  as  bodies  and  are  directly  under  command.] 

*  The  guards  of  Charles  II.  were  declared  anti-constitutional,  and  the  army  of 
James  II.  was  one  of  the  evidences  by  which  he  was  presumed  to  have  abdicated  ; 
that  is,  in  other  words,  one  of  his  breaches  of  the  fundamental  law  of  the  land. 
A  new  sanction  was  given  to  this  principle  in  the  sixth  article  of  the  Bill  of 
Rights,  which  runs  thus  :  "A  standing  army,  without  the  conseni  of  parliament, 
is  against  law." 


AND  SELF-GOVERNMENT.  II5 

the  crown  would  have  no  power  even  to  keep  up  military 
discipline. 

The  Constitution  of  the  United  States  makes  the  president, 
indeed,  commander-in-chief,  but  he  cannot  enlist  a  man,  or  pay 
a  dollar  for  his  support,  without  the  previous  appropriation  by 
congress,  to  which  the  constitution  gives  "  power  to  make 
rules  for  the  government  and  regulation  of  the  land  and  naval 
forces,"  and  to  which  it  denies  the  authority  of  making  any 
appropriation  for  the  support  of  the  national  forces  for  a  longer 
term  than  two  years. 

The  importance  of  this  dependence  of  the  arm.y  upon  the 
civil  power  has  been  felt  by  all  parties.  While  the  people  are 
bent  on  submitting  the  army  to  the  legislature,  the  govern- 
ments, which  in  the  late  European  struggles  were  anxious  to 
grant  as  little  liberty  as  possible,  always  endeavored  to  exclude 
the  army  from  the  obligation  of  taking  the  constitutional  oath. 
Constitutional  oaths,  like  other  political  oaths,  are  indeed  no 
firm  guarantee  in  times  of  civil  disturbance ;  but  where  cir- 
cumstances are  such  that  people  must  start  in  the  career  of 
freedom  with  an  enacted  constitution,  it  is  natural  and  neces- 
sary that  the  army  should  take  the  oath  of  fidelity  to  the 
fundamental  law,  like  any  other  persons  employed  in  public 
service,  especially  where  the  oath  of  allegiance  to  the  monarch 
continues.  The  oath,  when  taken,  we  have  already  admitted, 
does  not  furnish  any  great  security ;  but  in  this,  as  in  so  many 
other  cases,  the  negative  assumes  a  very  great  and  distinct 
importance,  although  the  positive  may  be  destitute  of  any 
direct  weight.  The  refusal  of  this  oath  shows  distinctly  that 
the  executive  does  not  intend  frankly  to  enter  on  the  path  of 
civil  freedom.  This  was  lately  the  case  in  Prussia,  when  it  was 
the  endeavor  of  the  people  to  establish  constitutional  liberty. 

The  Declaration  of  Independence  says :  "  He  has  kept 
among  us  in  times  of  peace  standing  armies  without  the  con- 
sent of  our  legislatures."  It  is  enumerated  as  a  radical 
grievance,  plain  and  palpable  to  every  Anglican  mind.  Im- 
mediately after,  the  Declaration  significantly  adds  :  "  He  has 
affected  to  render  the  military  independent  of,  and  superior  to, 


Il6  ON  CIVIL   LIBERTY 

the  civil  power."  This  "affected"  is  striking.  The  attempt 
of  doing  it,  though  the  term  "affected"  indicates  the  want  of 
success,  is  counted  as  a  grievance  sufficient  to  warrant,  among 
others,  an  extinction  of  allegiance.  Of  the  twenty-seven 
grievances  enumerated  in  the  Declaration  as  justification  for  a 
revolution,  three  relate  to  the  army.^ 

Dr.  Samuel  Johnson,  not  biased,  as  the  reader  well  knows, 
in  favor  of  popular  liberties,  nevertheless  showed  that  he  was 
bred  in  England,  when  he  speaks  of  "  the  greatest  of  political 
evils — the  necessity  of  ruling  by  immediate  force."  ^  There 
is,  however,  a  greater  evil  still — the  ruling  by  immediate  force 
when  it  is  not  necessary  or  against  the  people. 

Standing  armies  are  not  only  dangerous  to  civil  liberty  be- 
cause directly  depending  upon  the  executive.  They  have  the 
additional  evil  effect  that  they  infuse  into  the  whole  nation — 
especially  when  they  are  national  armies,  so  that  the  old  sol- 
diers return  continually  to  the  people — a  spirit  directly  oppo- 
site to  that  which  ought  to  be  the  general  spirit  of  a  free  peo- 
ple devoted  to  self-government.  A  nation  of  freemen  stands 
in  need  of  a  pervading  spirit  of  obedience  to  the  laws ;  an 
aimy  teaches  and  must  teach  a  spirit  of  prompt  obedience  to 
orders.  Habits  of  disobedience  and  of  contempt  for  the  citi- 
zen are  produced,  and  a  view  of  government  is  induced  which 
is  contrary  to  liberty,  self-reliance,  self-government.  Com- 
mand ought  to  rule  in  an  army ;  self-development  of  law  and 
self-sustaining  order  ought  to  pervade  a  free  people.  A  Ger- 
man king,  in  one  of  his  throne  speeches,  when  a  liberal  spirit 
had  already  manifested  itself  in  that  country,  said  :  "  The  will 
of  one  must  ultimately  rule  in  the  government,  even  as  it  is  in 
the  camp."  This  shows  exactly  what  we  mean.  The  entire 
state,  with   its   jural  and   civic   character,  is   compared  to  a 


'  A  remarkable  debate  took  place  in  the  British  commons  in  April,  1856, 
when  Mr.  Cowan  brought  under  the  notice  of  the  house  the  billeting  system 
pursued  in  Scotland,  according  to  which  "  militia  and  troops  of  the  line  are 
billeted  upon  private  houses  in  Scotland."  "  It  is  an  intolerable  grievance." 
Redress  was  obtained. 

»  Considerations  on  the  Corn  Laws,  by  Dr.  Samuel  Johnson. 


AND  SELF-GOVERNMENT.  II7 

camp,   and    ruinous    inferences   are   drawn   from    the   com- 
parison. 

The  officers  of  a  large  army  are  in  the  habit  of  contemptu- 
ously speaking  of  the  "  babbling  lawyers."  Les  legistes  have 
always  been  spoken  of  by  the  French  officers  in  the  same  tone 
as  "  those  lawyers"  were  talked  of  by  Strafford  and  Laud. 
Where  the  people  worship  the  army,  an  opinion  is  engendered 
as  if  really  courage  in  battle  were  the  highest  phase  of 
humanity ;  and  the  army,  in  turn,  more  than  aught  else,  leads 
to  the  worship  of  one  man — so  detrimental  to  liberty.  All 
debate  is  in  common  times  odious  to  the  soldiers.  They 
habitually  ridicule  parliamentary  debates  of  long  duration. 
Act,  act,  is  their  cry,  which  in  that  case  means :  Command 
and  obey  are  the  two  poles  round  which  public  life  ought  to 
turn.  A  man  who  has  been  a  soldier  himself,  and  has  seen 
the  inspiring  and  rallying  effect  which  a  distinctive  uniform 
may  have  in  battle — the  desire  not  to  disgrace  the  coat — is  not 
likely  to  fall  in  with  the  sweeping  denunciations  of  the  uniform, 
now  frequently  uttered  by  the  "  peace-men ;"  but  it  is  true 
that  the  uniform,  if  constantly  worn,  and  if  the  army  is  large, 
as  on  the  continent  of  Europe,  greatly  aids  in  separating  the 
army  from  the  people,  and  in  increasing  that  alienating  esprit 
de  corps  which  ought  not  to  exist  where  the  people  value  their 
liberty.  Modern  despotism  carefully  fosters  this  spirit  of 
separation,  because  it  relies  mainly  on  the  standing  army. 
The  insolence  of  the  officers  of  Napoleon  I.  rose  to  a  frightful 
degree,  even  in  France  itself;  and  many  startling  events  have 
lately  occurred  in  that  country^  showing  how  far  Napoleon  III. 
indulges  his  officers  in  insulting  and  maltreating  the  citizen.' 
No  security  whatever  arises  from  the  fact  that  the  army  is 
"  democratic"  in  its  character.  On  the  contrary,  the  danger  is 
only  the  greater,  because  it  makes  the  army  apparently  a  part 
of  the  people ;  the  people  themselves  look  to  it  for  one  of  the 
careers  in  which  they  may  expect  promotion,  (not  quite  unlike 
the  church  in  the  middle  ages,)  while,  in  spite  of  all  this,  the 


'  I  write  at  the  beginning  of  1859. 


Il8  ON  CIVIL  LIBERTY 

army  becomes  a  secluded  caste,  essentially  opposed  to  the 
aspirations  of  the  people.  No  better  illustration  is  afforded 
in  history,  of  this  important  fact,  than  by  the  present  state  of 
things  in  France. 

Nor  is  the  case  better  when  the  army  is  the  ruling  body, 
and  its  officers  belong  exclusively  to  the  country  nobility, 
'n  a  country  where  every  son  of  a  nobleman  is  likewise  noble, 
.  fid  a  large,  poor  nobility  is  the  consequence.  A  numerous 
and  poor  nobility  is  one  of  the  most  injurious  and  ruinous 
things  in  a  state.  It  leads  infallibly  to  that  spirit  which  tries 
to  make  up  by  arrogance  what  it  does  not  possess  in  wealth 
or  substance,  which  considers  the  state  as  an  institution  made 
for  the  provision  of  the  poor  noblemen,  and  disregards  the 
true  and  the  high  interests  of  the  nation — a  state  of  things 
which  revealed  itself,  for  Prussia,  in  the  terrible  disaster  at 
Jena,  in  1806,  and  which  has  received  in  that  and  other  Ger- 
man countries,  of  late,  the  distinct  appellation  of  jfiinkcrtlnim. 

Standing  armies,  therefore,  wherever  necessary — and  they 
are  necessary  at  present,  as  well  as  far  preferable  to  the 
medieval  militia — ought  to  be  as  small  as  possible,  and  com- 
pletely dependent  on  the  legislature  for  their  existence.  Such 
standing  armies  as  we  see  in  the  different  countries  of  the 
European  continent  are  wholly  incompatible  with  civil  liberty, 
by  their  spirit,  number,  and  cost. 

A  perfect  dependence  of  the  forces,  however,  requires  more 
than  short  appropriations,  and  limited  authority  of  the  execu- 
tive over  them.  It  is  further  necessary — because  they  are 
under  strict  discipline,  and  therefore  .under  a  strong  influence 
of  the  executive — that  these  forces,  and  especially  the  army, 
be  not  allowed  to  become  deliberative  bodies,  and  that  they 
be  not  allowed  to  vote  as  military  bodies.  Wherever  these 
guarantees  have  been  disregarded,  liberty  has  fallen.  These 
are  rules  of  importance  at  all  times,  but  especially  in  countries 
where,  unfortunately,  very  large  standing  armies  exist.  In 
France,  the  army  consists  of  half  a  million,  yet  universal 
suffrage  gave  it  the  right  to  vote,  and  the  army  as  well  as  the 
navy  did  vote  to  justify  the  second  of  December,  as  well  as  to 


AND  SELF-GOVERNMENT.  1 19 

make  Louis  Napoleon  Bonaparte  emperor.  This  may  be  in 
harmony  with  French  "equality;"  it  may  be  democratic,  if  this 
term  be  taken  in  the  sense  in  which  it  is  wholly  unconnected 
with  liberty ;  all  that  we — people  with  whom  liberty  is  more 
than  a  theory,  or  something  aesthetically  longed  for,  and  who 
learn  liberty  as  the  artisan  learns  his  craft,  by  handling  it — 
all  that  we  know  is,  that  it  is  not  liberty ;  that  it  is  directly 
destructive  of  it* 

It  was  formerly  the  belief  that  standing  armies  were  incom- 
patible with  liberty,  and  a  very  small  one  was  granted  to  the 
King  of  England  with  much  reluctance;  but  in  France  we  see 
a  gigantic  standing  army,  itself  incompatible  with  liberty,  for 
which  in  addition  the  right  of  voting  is  claimed. 

The  Bill  of  Rights,  and  our  own  Declaration  of  Independ- 
ence, show  how  large  a  place  the  army  occupied  in  the  minds 
of  the  patriotic  citizens  and  statesmen  who  drew  up  those 
historic  documents,  the  reasons  they  had  to  mention  it  re- 
peatedly, and  to  erect  fences  against  it. 

Military  bodies  ought  not  to  be  allowed  even  the  right  of 
petitioning,  as  bodies.  History  fully  proves  the  danger,  that 
must  be  guarded  against.^  English  history,  as  well  as  that  of 
other  nations,  furnishes  us  with  instructive  instances. 

A  wise  medium  is  necessary ;  for  an  army  without  thorough 


'  The  French  soldiars  vote  at  present,  whenever  universal  suffrage  is  appealed 
to — not  with  the  citizens,  but  for  themselves,  and  the  way  in  wliich  this  militaiy 
voting  generally  takes  place  is  very  remarkable. 

=  I  do  not  feel  authorized  to  say  that  the  Anglicans  consider  it  an  elementary 
guarantee  of  liberty  not  to  be  subjected  to  the  obligation  of  serving  in  the  army, 
but  certain  it  is  that,  as  matters  now  stand  and  as  our  feelings  now  are,  we  should 
not  consider  it  compatible  with  individual  liberty — indeed,  it  would  be  considered 
as  intolerable  oppression — if  we  were  forced  to  spend  part  of  our  lives  in  the 
standing  army.  It  would  not  be  tolerated.  The  feeling  would  be  as  strong 
against  the  French  system  of  conscription,  which  drafts  by  lot  a  certain  number 
of  young  men  for  the  army,  and  permits  those  who  have  been  drafted  to  furnish 
substitutes,  as  against  the  Prussian  system,  which  obliges  every  one,  from  the 
highest  to  the  lowest,  to  serve  a  certain  time  in  the  standing  army,  with  the  ex- 
ception only  of  a  few  "mediatized  princes."  The  Anglicans,  therefore,  may  be 
said  to  be  at  present  unequivocally  in  favor  of  enlisted  standing  armies,  where 
standing  armies  are  necessary. 


120  ON  CIVIL  LIBERTY 

unity  is  useless ;  indeed,  worse  than  useless.  It  produces  a 
thousand  evils  without  any  good ;  while  it  must  always  be  con- 
sidered as  a  distinct  postulate  of  Civil  Liberty,  that  a  well- 
organized  army  is  of  itself  a  subject  of  great  danger.  To 
make  an  efficient  army,  in  modern  times,  harmonize  with  all 
the  demands  of  substantial  civil  liberty  is  doubtless  one  of  the 
problems  of  our  race  and  age,  and  one  most  difficult  to  solve 
— forming,  perhaps,  with  the  problem  of  carrying  out  a  high 
degree  of  individual  liberty  in  large  and  densely-peopled  cities, 
the  two  most  difficult  problems  of  high,  patriotic,  and  substan- 
tial statesmanship. 

14.  Akin  to  the  last-mentioned  guarantee  is  that  which 
secures  to  every  citizen  the  right  of  possessing  and  bearing 
arms.  Our  constitution  says :  "  The  right  of  the  people  to 
keep  and  bear  arms  shall  not  be  infringed  upon ;"  and  the  Bill 
of  Rights  secured  this  right  to  every  Protestant.  It  extends 
now  to  every  English  subject.  It  will  hardly  be  necessary  to 
add,  that  laws  prohibiting  secret  weapons,  or  those  which 
necessarily  endanger  the  lives  of  the  citizens,  are  no  infringe- 
ment of  liberty ;  on  the  contrary,  liberty  resting  necessarily 
on  law,  and  a  lawful,  that  is  peaceful,  state  of  the  citizens, 
liberty  itself  requires  the  suppression  of  a  return  to  force  and 
violence  among  the  citizens — a  fact  by  no  means  sufficiently 
weighed  in  recent  times  in  America. 

Whenever  attempts  at  establishing  liberty  have  lately  been 
made  on  the  continent  of  Europe,  a  general  military  organiza- 
tion of  the  people,  or  "  national  guards,"  has  been  deemed 
necessary ;  but  we  cannot  point  them  out  as  characteristics  of 
Anglican  liberty. 


AND  SELF-GOVERNMENT.  12 1 


CHAPTER    XII. 


PETITION. — ASSOCIATION. 


15.  We  pass  over  to  the  great  right  of  petitioning,  so  jeal- 
ously suppressed  wherever  absolute  power  rules  or  desires  to 
establish  itself,  so  distinctly  contended  for  by  the  English  in 
their  revolution,  and  so  positively  acknowledged  by  our  con- 
stitution. 

An  American  statesman  of  great  mark  has  spoken  lightly 
of  the  right  of  petition  in  a  country  in  which  the  citizens  are 
so  fully  represented  as  with  us ; '  but  this  is  an  error.  It  is  a 
right  which  can  be  abused,  like  any  other  right,  and  which  in 
the  United  States  is  so  far  abused  as  to  deprive  the  petition  of 
weight  and  importance.  It  is  nevertheless  a  sacred  right, 
which  in  difficult  times  shows  itself  in  its  full  magnitude,  fre- 
quently serves  as  a  safety-valve,  if  judiciously  treated  by  the 
recipients,^  and  may  give  to  the  representatives  or  other  bodies 
the  most  valuable  information.  It  may  right  many  a  wrong, 
and  the  privation  of  it  would  at  once  be  felt  by  every  freeman 
as  a  degradation.  The  right  of  petitioning  is  indeed  a  neces- 
sary consequence  of  the  right  of  free  speech  and  deliberation, 
a  simple,  primitive,  and  natural  right.  As  a  privilege  it  is  not 
even  denied  the  creature  in  addressing  the  Deity.     It  is  so 


»  It  was  stated  by  him  that  the  right  of  petition  was  of  essential  value  only  in 
a  monarchy,  against  the  encroachments  of  the  crown.  But  this  whole  view  was 
unquestionably  a  confined  one,  and  caused  by  irritation  against  a  peculiar  class 
of  persevering  petitioners. 

*  There  is  no  more  striking  instance  on  record,  so  far  as  our  knowledge  goes, 
than  the  formidable  petition  of  the  chartists  in  1848,  and  the  calm  respect  with 
which  this  threatening  document  was  received  by  the  commons,  after  a  speech 
full  of  dignity  and  manly  acknowledgment  of  the  people  by  Lord  Morpeth,  now 
Karl  of  Carlisle. 


122  ON  CIVIL   LIBERTY 

natural  a  right,  in  all  spheres  where  there  are  superiors  and 
inferiors,  that  its  special  acknowledgment  in  charters  or  by- 
laws would  be  surprising,  had  not  ample  experience  shown  the 
necessity  of  expressing  it' 

Where  the  government  is  founded  on  the  parental  principle, 
or  where  the  despot  appears  as  an  earthly  Providence,  the 
petition  of  individuals  plays,  naturally,  an  important  part,  so 
long  as  it  does  not  become  either  dangerous  or  troublesome, 
or  unwelcome  to  the  officers  near  the  person  of  the  monarch. 

The  Emperor  Nicholas  of  Russia  was  often  spoken  to  in 
the  .streets  by  petitioners;  while,  on  the  other  hand,  we  re- 
member a  royal   decree  in   Prussia,  published  about  thirty 

'  The  discussion  of  petitions  in  the  house  of  commons  seems  to  have  under- 
gone a  marked  change,  as  will  appear  from  the  following  remarks  of  Lord 
Brougham,  which  he  made  in  the  house  of  lords  in  June,  1853,  when  the  exten- 
sion of  the  time  of  the  income  tax  Avas  under  debate.  Lord  Brougham  said  that 
he  did  not  expect  that  the  income  tax  would  expire  in  i860.  He  recalled  the 
circumstances  under  which  the  old  income  tax  was  repealed,  in  defiance  of  the 
government  of  that  day;  through  the  instrumentality  of  nightly  discussions  on 
petitions — a  popular  privilege  no  longer  allowed  in  the  house  of  commons. 

"In  1806,  when  the  income  tax  was  10  per  cent.,  it  was  imposed  till  the  end 
of  the  war,  and  no  longer.  The  war  ended  in  1814,  but  it  broke  out  again  in 
1815;  and  after  its  final  termination  a  great  fight  against  the  continuance  of  the 
tax  took  place  in  the  house  of  commons.  It  had  been  said  that  the  present 
income  tax  would  not  be  abandoned  in  i860;  and  he  believed  that  the  campaign 
which  took  place  in  parliament  in  1816  could  not  be  fought  again.  How  was 
that  campaign  conducted?  By  means  of  petitions.  For  five  or  six  weeks,  from 
four  o'clock  in  the  afternoon  till  two  or  three  o'clock  in  the  morning,  petition 
after  petition  was  presented,  and  each  petition  was  debated.  If  an  account  was 
given  of  the  proceedings  of  the  five  or  six  weeks  during  which  that  campaign- 
against  the  income  tax  was  fought,  it  would  describe  one  of  the  most  extraordinary 
scenes  ever  witnessed  within  the  walls  of  the  house  of  commons,  and  a  resistance 
which  was  perfectly  successful.  He  might  mention  one  incident  which  occurred 
during  those  discussions.  After  the  fight  had  continued  some  three  weeks  or 
more,  one  night  about  eleven  or  twelve  o'clock  a  question  was  put  from  the 
chair  about  bringing  up  the  petitions;  and  all  the  members  on  one  bench — who 
might  have  been  supposed  to  be  exhausted  by  the  long  sitting — rose  in  competi- 
tion with  each  other  to  catch,  as  it  was  called,  the  Speaker's  eye;  and  the  gallantry 
of  those  men  in  standing  by  their  colors  under  such  circumstances  so  struck  the 
house  that  they  were  hailed  with  a  general  cheer  of  applause.  He  did  not  think, 
however,  that  in  i860,  unless  a  great  change  took  place  elsewhere,  the  same 
''ampaign  and  stand  against  the  income  tax  would  be  possible." 


I 


AND  SELF-GOVERNMENT.  1 23 

years  ago  which  directed  that  petitions  must  no  longer  be 
thrust  upon  the  monarch  personally.  Under  Frederic  the 
Great,  again,  it  was  a  common  thing  for  petitioners  to  attract 
the  king's  attention  by  holding  the  petition  above  the  heads 
of  the  crowd,  when  he  would  send  an  aid  to  take  it.  In  China 
the  right  of  petitioning  the  monarch  is  symbolically  acknowl- 
edged, by  the  drum  or  gong  at  the  palace  gate,  which  the 
petitioner  beats  when  he  drops  the  petition  into  the  receiving 
box.  But  the  Chinese  doubtless  think  and  feel  what  the 
Russians  express  in  the  significant  saying :  "  God  lives  high, 
and  the  emperor  far."  The  missionary  Hue  informs  us  that 
popular  meetings,  where  petitions  are  adopted  or  dismissed, 
are  not  rare  in  China.* 

The  political  philosopher  in  treating  of  this  subject  must 
distinguish  between  petitions  to  the  executive,  (and  as  to  peti- 
tions for  pardon,  which  have  become  a  most  serious  evil  in  the 
United  States,  the  reader  is  referred  to  the  paper  on  pardons 
in  the  Appendix ;)  petitions  of  the  army,  which,  history  amply 
teaches,  must  be  absolutely  interdicted ;  we  need  only  remind 
the  reader  of  the  English  history,  and  that  of  France ;  and, 
lastly,  petitions  to  the  legislature.  As  to  the  latter,  it  is  all- 
important  for  the  cause  of  civil  liberty,  that  is,  the  freedom  of 
the  people  in  earnest  and  in  reality,  that  the  petition,  whatever 
demonstration  of  moral  power  or  public  opinion  it  may  be,  be 
unaccompanied  by  physical  demonstration  of  crowds,  armed 
or  unarmed,  in  the  legislative  halls  or  outside.  Indeed,  they 
cease  to  be  petitions  and  become  physical  threats  or  coercion. 
The  history  of  the  French  revolution  is  almost  one  continued 
commentary  on  this  position.  The  whole  meaning  of  a  legis- 
lature, as  a  necessary  element  of  liberty,  is  that  it  be  free;  and 
it  ceases  to  be  free,  so  soon  as  crowds  threaten  it. 

We  maintain  that  the  right  of  petitioning  is  important,  and 
for  this  very  reason  it  must  neither  be  treated  lightly,  on  the 


*  It  would  be  a  grave  error,  indeed,  to  conclude  from  this  fact,  or  from  the 
general  democratic  character  of  the  Chinese  system,  that  there  is  liberty  in  China 
— a  conclusion  as  hasty  as  it  would  be  to  infer  that  freedom  exists  in  France 
because  the  empire  declares  itself  to  be  founded  on  universal  suffrage. 


124 


ON  CIVIL  LIBERTY 


part  of  the  petitioners,  nor  wrenched  from  its  meaning  and  be 
changed  into  coercing  threat.  The  petition  in  free  states  is 
an  institution,  and  not  an  incident  as  in  the  despotic  govern- 
ment. Resorted  to  as  one  of  the  civil  agents  by  a  free  people, 
its  distinct  uses  lie  in  its  direct  effect,  in  inciting  and  awakening 
public  attention ;  in  keeping  alive  an  important  idea,  although  it 
may  not  lead  to  immediate  action  ;  in  countenancing  those  who 
desire  to  act  and  to  be  supported ;  in  showing  public  opinion 
concerning  some  distinct  point ;  in  serving  as  a  safety-valve  in 
times  of  public  excitement,  and  in  being  a  substitute  for  unor- 
ganized and  unreasoning  crowds.  Its  dangers  are  the  dangers 
of  all  agents  whatever — its  abuses,  and  the  wide-spread  weak- 
ness of  men,  which  induces  them  inconsiderately  to  put  down 
their  names,  rather  than  refuse  the  signature. 

1 6.  Closely  connected  with  the  right  just  mentioned  is  the 
right  of  citizens  peaceably  to  meet  and  to  take  public  matters 
into  consideration,  and 

17.  To  organize  themselves  mto  associations,  whether  for 
political,  religious,  social,  scientific,  industrial,  commercial,  or 
cultural  purposes.  That  this  right  can  become  dangerous,  and 
that  laws  are  frequently  necessary  to  protect  society  against 
abuse,  every  one  knows  perfectly  well  who  has  the  least 
knowledge  of  the  French  clubs  in  the  first  revolution.  But  it 
is  with  rights,  in  our  political  relations,  as  with  the  principles 
of  our  physical  and  mental  organization — the  more  elementary 
and  indispensable  they  are,  the  more  dangerous  they  become 
if  not  guided  by  reason.  Attempts  to  suppress  their  action 
lead  to  mischief  and  misery.  What  has  been  more  abused 
than  private  and  traditional  judgment  in  all  the  spheres  of 
thought  and  taste  ?  Yet  both  are  necessary.  What  principle 
of  our  nature  has  led,  and  is  daily  leading,  to  more  vice  and 
crime  than  that  on  which  the  propagation  of  our  species  and 
the  formation  of  the  family  depend,'  or  that  which  indicates 
by  thirst  the   necessity  of  refreshing   the   exhausted  body  ? 


»  The  so-called  Shakers  endeavor  to  extirpate  this  principle,  and  furnish  iis 
with  an  illustration  of  the  evils  arising  from  the  endeavor. 


AND  SELF-GOVERNMENT.  1 25 

Shall  the  free  sale  of  cutlery  be  interfered  with,  because  mur- 
ders are  committed  with  knives  and  hatchets? 

The  associative  principle  is  an  element  of  progress,  protec- 
tion, and  efficient  activity.  The  freer  a  nation,  the  more  de- 
veloped we  find  it  in  larger  or  smaller  spheres ;  and  the  more 
despotic  a  government  is,  the  more  actively  it  suppresses  all 
associations.  The  Roman  emperors  did  not  even  look  with 
favor  upon  the  associations  of  handicrafts.'  In  modern  times 
no  instances  of  the  power  which  associations  may  wield,  and 
of  the  full  extent  which  a  free  country  may  safely  allow  to 
their  operations,  seem  to  be  more  striking  than  those  of  the 
Anti-Corn-Law  League  in  England,  which,  by  gigantic  exer- 
tions, ultimately  carried  free  trade  in  corn  against  the  strongest 
and  most  priv^ileged  body  of  land-owners  that  has  probably  ever 
existed,  either  in  modern  or  ancient  times  ;^  and,  in  our  own 
country,  the  Colonization  Society,  a  private  society,  planting 
a  new  state  which  will  be  of  great  influence  in  the  spreading 
cause  of  civilization — a  society  which,  according  to  the  Libe- 
rian  declaration  of  independence,  "  has  nobly  and  in  perfect 
faith  redeemed  its  pledges."  In  every  country,  except  in  the 
United   States   and  in  England,  the  cry  would    have  been, 


»  [This  is  not  borne  out  by  facts,  although  the  same  broad  statement  has  been 
made  by  others.  Sodalitates  were  frowned  upon,  but  collegia  opificum,  ahhough 
the  state  controlled  and  could  dissolve  them,  were  numerous.  See  the  list  in  the 
Index  in  vol.  iii.  of  the  Orelli-Henzen  Inscr.  Latinse;  which  shows  that  there 
must  have  been  thousands  of  such  unions,  under  the  empire,  all  over  the  west. 
Comp.  also  Rein  in  Paully's  Lexicon,  under  Collegium  and  Sodaliia^.  It  is  true, 
however,  that  despotism,  especially  in  modern  times,  since  the  means  of  com- 
munication are  better  and  more  used,  instinctively  dreads  combined  action  for 
any  social,  moral,  or  religious  end,  as  dangerous  to  political  power.] 

=  A  careful  study  of  the  whole  history  of  this  remarkable  association,  which  in 
no  state  of  the  European  continent  would  have  been  allowed  to  rise  and  expand, 
is  recommended  to  every  student  of  civil  liberty.  It  is  instructive  as  an  instance 
of  perseverance ;  of  an  activity  the  most  multifarious,  and  an  organization  the 
most  extensive ;  of  combined  talent  and  shrewd  adaptation  of  the  means  to  the 
end;  and,  which  is  always  of  equal  importance,  of  a  proper  conception  of  the 
end  according  to  the  means  at  our  disposal,  without  which  it  is  impossible  to 
do  that  which  Cicero  so  highly  praised  in  Brutus,  when  he  said.  Quid  vult  valde 
vult. 


126  ON  CIVIL  LIBERTY 

Imperium  in  imperio,  and  both  would  have  been  speedily  put 
down. 

We  may  also  mention  our  voluntary  churches,  or  the  Law 
Amendment  Association  in  England — a  society  which,  so  far 
as  we  can  judge  at  this  distance,  has  already  produced  most 
beneficial  effects  upon  English  legislation,  and  which  in  every 
other  country  occupied  by  our  race,  except  in  the  United 
States,  would  be  stigmatized  as  an  imperium  in  imperio  full 
of  assumption.  There  is  nothing  that  more  forcibly  strikes  a 
person  arriving  for  the  first  time  from  the  European  continent, 
either  in  the  United  States  or  in  England,  than  the  thou- 
sandfold evidences  of  an  all-pervading  associative  spirit  in  all 
moral  and  practical  spheres,  from  the  almost  universal  com- 
mercial copartnerships  and  associations,  the  "  exchanges"  of 
artisans,  and  banks,  to  those  unofficial  yet  national  associa- 
tions which  rise  to  real  grandeur.  Strike  out  from  England 
or  America  this  feature  and  principle,  and  they  are  no  longer 
the  same  self-relying,  energetic,  indomitably  active  people. 
The  spirit  of  self-government  Avould  be  gone.  In  France, 
an  opposite  spirit  prevails.  Not  only  does  the  government 
believe  that  it  must  control  everything,  but  the  people  them- 
selves seem  hardly  ever  to  believe  in  success  until  the  govern- 
ment has  made  the  undertaking  its  own.^ 


'  I  cannot  forbear  mentioning  here  one  of  those  occurrences  which,  ahhough 
apparently  trivial,  nevertheless  show  the  constant  action  of  a  great  principle,  as 
the  leaf  of  a  tree  reveals  to  the  philosopher  the  operation  of  the  vastest 
elements  in  nature.  At  a  meeting  of  the  Royal  Academy  at  London  in  1852, 
at  which  the  ministers  were  present,  the  premier,  Lord  Aberdeen,  said  that  "  as 
a  fact  full  of  hope,  he  remarked  that  for  several  years  the  public,  in  the  apprecia- 
tion of  art,  had  outstripped  the  government  and  the  parliament  itself." 

The  chief  executive  officer  considers  it  a  fact  full  of  hope  that  the  people 
have  outstripped,  in  interest  and  action,  the  government  and  parliament.  How 
dilTerently  would  a  similar  case  have  presented  itself  in  any  of  the  continental 
countries ! 


AND  SELF-GOVERNMENT. 


127 


CHAPTER    XIII. 


PUBLICITY. 


18.  We  now  approach  those  guarantees  of  liberty  which 
relate  more  especially  to  the  government  of  a  free  country, 
and  the  character  of  its  polity.  The  first  of  all  we  have  to 
mention  under  this  head  is  publicity  of  public  business.  This 
implies  the  publicity  of  legislatures  and  judicial  courts,  as  well 
as  of  all  minor  transactions  that  can  in  their  nature  be  trans- 
acted publicly,  and  also  the  publication  of  all  important  docu- 
ments and  reports,  treaties,  and  whatever  else  can  interest  the 
people  at  large.  It  further  implies  the  perfect  freedom  with 
which  reporters  may  publish  the  transactions  of  public  bodies.*' 
Without  the  latter,  the  admission  of  the  public  would  hardly 
amount  in  our  days  to  any  publicity  at  all.  We  do  not  assem- 
ble in  the  markets  as  the  people  of  antiquity  did.  The  millions 
depending  upon  public  information,  in  our  national  states, 
could  not  meet  in  the  assembly,  as  was  possible  in  the  ancient 


•  In  the  year  1857  the  following  case  was  decided  in  the  court  of  common 
pleas  at  Columbia,  S.  C. ,  in  favor  of  the  plaintiff.  The  city  council  held,  in 
1855,  a  public  meeting.  The  editor  of  one  of  the  city  papers,  being  present,  was 
asked  by  the  mayor  whether  he  had  come  to  take  notes.  The  mayor,  being  an- 
swered in  the  affirmative,  ordered  the  chief  police  officer  to  turn  the  editor  out 
of  the  room,  declaring  at  the  time  that  he  acted  on  the  strength  of  a  resolution  of 
the  city  council.  At  a  later  period  this  procedure  was  defended  on  the  ground 
that  the  city  appoints  a  paper  to  give,  officially,  all  the  transactions  of  the  board. 
Robert  W.  Gibbes  vs.  Edward  J.  Arthur  and  John  Burdell.  This  novel  pase 
w.as  reported  with  great  care,  and  published  with  all  the  arguments,  at  Columbia, 
S.  C,  in  1857,  under  the  title.  Rights  of  Corporations  and  Reporters.  The  public 
owes  thanks  to  the  plaintiff  for  having  perseveringly  pursued  this  surprising  case, 
the  first  of  the  kind,  it  would  appear.  The  pamphlet  contains  letters  of  nearly 
thirty  American  mayors,  testifying  that  reporters  cannot  be  denied  admission  to 
the  deliberations  of  the  councils  of  their  cities,  although  there  be  an  appointed 
printer  to  the  board. 


128  ON  CIVIL  LIBERTY 

city-states,  even  if  we  had  not  a  representative  government. 
The  pubHc  journals  are  in  some  respects  to  modern  freemen 
what  the  agora  was  to  the  Athenian,  the  forum  to  the  Roman. 
A  modern  free  city-state  can  be  imagined  without  a  public 
press ;  a  modern  free  country  cannot ;  although  we  must  never 
forget  the  gigantic,  and  therefore  dangerous,  power  which, 
under  certain  circumstances,  a  single  public  journal  may 
obtain,  and,  consequently,  ought  to  be  counteracted  by  the 
means  which  lie  in  the  publicity  and  freedom  of  the  press  itself 

Publicity,  in  connection  with  civil  liberty,  means  publicity  in 
the  transaction  of  the  business  of  the  public,  in  all  branches — 
publicity  in  the  great  process  by  which  public  opinion  passes 
over  into  public  will,  which  is  legislation  ;  and  publicity  in  the 
elaboration  of  the  opinion  of  the  public,  as  well  as  in  the  pro- 
cess of  ascertaining  or  enouncing  it  by  elections.  Hence  the 
radical  error  of  secret  political  societies  in  free  countries. 
They  are  intrinsically  hostile  to  liberty. 

Important  as  the  printing  of  transactions,  reports,  and  docu- 
ments is,  it  is  nevertheless  true  that  oral  discussions  are  a  most 
important  feature  of  Anglican  publicity  of  legislative,  judicial, 
and  of  many  of  the  common  administrative  transactions. 
Modern  centralized  absolutism  has  developed  a  system  of 
writing  and  secrecy,  and  consequent  formalism,  abhorrent  to 
free  citizens  who  exist  and  feed  upon  the  living  word  of  liberty.^ 


»  The  following  passage  is  given  here  for  a  twofold  purpose.  Everything  in  it 
applies  to  the  government  of  the  pen  on  the  continent  of  Europe,  and  it  shows 
how  similar  causes  have  produced  similar  results  in  India  and  under  English- 
men, who  at  home  are  so  adverse  to  government  writing  and  to  bureaucracy.  In 
the  Notes  on  the  Northwestern  Province  of  India,  by  Charles  Raikes,  Magistrate 
and  Collector  of  Mynpoorie,  London,  1853,  we  find  this  passage : 

"  Action,  however,  and  energy,  are  what  we  now  lay  most  stress  upon,  because 
in  days  of  peace  and  outward  tranquillity  these  qualities  are  not  always  valued  at 
their  true  price,  and  their  absence  is  not  so  palpably  mischievous  as  in  more  stir- 
ring times.  There  is  more  danger  now  of  men  becoming  plodding,  methodical, 
mere  office  functionaries,  than  of  their  stepping  with  too  hasty  a  zeal  beyond  the 
limits  of  the  law.  There  is  truth,  too,  in  Jacquemont's  sneer — India  is  governed 
by  stationery,  to  a  more  than  sufficient  extent ;  and  one  of  the  commonest  errors 
of  our  magistrates,  whicli  they  imbibe  from  constant  and  early  Indian  associa- 
tions, is  to  mistake  writing  for  action,  to  fancy  that  a';V/rt//^«  will  supply  the  place 


AND  SELF-GOVERNMENT.  1 29 

Bureaucracy  is  founded  upon  writing,  liberty  on  the  breathing 
word.  Extensive  writing,  pervading  the  minutest  branches  of 
the  administration,  is  the  most  active  assistant  of  modern  cen- 
trahzation.  It  systematizes  a  pohce  government  in  a  degree 
v/hich  no  one  can  conceive  of  that  does  not  know  it  from  per- 
sonal observation  and  experience,  and  forms  one  of  the  greatest 
obstacles,  perhaps  the  most  serious  difficult}^  when  nations, 
long  accustomed  to  this  all-penetrative  agent  of  centralism, 
desire  to  establish  liberty.  I  do  not  hesitate  to  point  out 
orality,  especially  in  the  administration  of  justice,  in  legislation 
and  local  self-government,  as  an  important  element  of  our 
civil  liberty.  I  do  not  believe  that  a  high  degree  of  liberty 
can  be  imagined  without  widely  pervading  orality ;  but  oral 
transaction  alone  is  no  indication  of  liberty.  The  patriarchal 
and  tribal  governments  of  Asia,  the  chieftain  government  of 
our  Indians,  indeed  all  primitive  governments,  are  carried  on 
by  oral  transaction  without  any  civil  liberty. 


of  exertion.  In  no  other  country  are  so  many  written  orders  issued  with  so 
much  confidence,  received  with  such  respect,  and  broken  with  such  complacency. 
In  fact,  as  for  writing,  we  believe  the  infection  of  the  '  cacoethes  scribendi'  must 
first  have  grown  up  in  the  East.  It  pervades  everything,  but  is  more  rampant 
and  more  out  of  place  in  a  police  office  than  anywhere  else.  It  was  not  the 
magistrates  who  originated  this  passion  for  scribbling;  but  they  have  never  suc- 
ceeded in  repressing  it,  nor,  while  the  law  requires  that  every  discontented  old 
woman's  story  shall  be  taken  down  in  writing,  is  it  to  be  expected  they  ever  will. 
The  Khayeths  worship  their  pen  and  ink  on  certain  festivals,  and  there  is  a  sort 
of  '  religio'  attaching  to  written  forms  and  statements,  which  is  not  confined  to 
official  life,  but  pervades  the  whole  social  polity  of  the  writing  tribes.  An  Indian 
scribe,  whose  domestic  expenditure  may  average  a  sixpence  a  day,  will  keep  an 
account-book  with  as  many  columns,  headings,  and  totals  as  would  serve  for  the 
budget  of  a  chancellor  of  the  exchequer.  To  Tudor  Mul  and  such  worthies  we 
owe,  no  doubt,  a  great  deal  for  the  method  and  order  which  they  infused  into 
public  records;  but  we  have  also  to  thank  these  knights  of  the  pen  for  the 
plaguiest  long-figured  statements,  and  the  greatest  number  of  such  statements, 
which  the  world  ever  saw."  Well  may  the  continental  European,  reading  this, 
exclaim,  C'est  tout  comme  chez  nous  !  In  1858,  one  of  the  most  distinguished 
statesmen  of  France,  universally  known  as  a  publicist,  a  former  member,  cabinet 
minister,  and  orator  in  the  house  of  representatives,  wrote  from  Germany,  "  I 
observe  that  the  writing  which  I  have  always  considered  so  injurious  to  our 
affairs  in  France  is  carried,  if  possible,  to  a  still  greater  degree  in  this  country." 

9 


130 


ON  CIVIL  LIBERTY 


Publicus,  originally  Populicus,  meant  that  which  relates  to 
the  Populus,  to  the  state,  and  it  is  significant  that  the  term 
gradually  acquired  the  meaning  of  public,  as  we  take  it — as 
significant  as  it  is  that  a  great  French  philosopher,  honored 
throughout  our  whole  country,  lately  wrote  to  a  fi^iend : 
"  Political  matters  here  are  no  longer  public  matters."' 

In  fi^ee  countries  political  matters  relate  to  the  people,  and 
therefore  ought  to  be  public.  Publicity  informs  of  public  mat- 
ters ;  it  teaches,  and  educates,  and  it  binds  together.  There  is 
no  patriotism  without  publicity,  and  though  publicity  cannot 
always  prevent  mischief,  it  is  at  all  events  an  alarm-bell,  which 
calls  the  public  attention  to  the  spot  of  danger.  In  former 
times  secrecy  was  considered  indispensable  in  public  matters ; 
it  is  still  so  where  cabinet  policy  is  pursued,  or  monarchical 
absolutism  sways ;  but  these  governments,  also,  have  been 
obliged  somewhat  to  yield  to  a  better  spirit,  and  the  Russian 
government  now  publishes  occasionally  government  reports. 

That  there  are  certain  transactions  which  the  public  service 
requires  to  be  withdrawn  for  a  time  from  publicity  is  evident. 
We  need  point  only  to  diplomatic  transactions  when  not  yet 
brought  to  a  close.  But  even  with  reference  to  these  it  will 
be  observed  that  a  great  change  has  been  wrought  in  modern 
times,  and  comparatively  a  great  degree  of  publicity  now  pre- 
vails in  the  foreign  intercourse  of  nations — a  change  of  which 
the  United  States  have  set  the  example.  A  state  secret  was 
formerly  a  potent  word  ;  while  one  of  our  first  statesmen  wrote 
to  the  author,  many  years  ago,  "  I  would  not  give  a  dime  for 
all  the  secrets  that  people  may  imagine  to  be  locked  up  in  the 
United  States  archives." 

It  is  a  remarkable  fact  that  no  law  insures  the  publicity  of 
the  courts  of  justice,  either  in  England  or  the  United  States. 
Our  constitution  secures  neither  the  publicity  of  courts  nor 
that  of  congress,  and  in  England  the  admission  of  the  public 
to  the  commons  or  the  lords  is  merely  by  sufferance.     The 


•  This  observation  followed  a  request  to  write  henceforth  with  caution,  because» 
said  he,  choses  politiqucs  ne  sont  plus  ici  choses  publiques. 


AND  SELF-GOVERNMENT. 


131 


public  may  at  any  time  be  excluded  merely  by  a  member  ob- 
serving to  the  presiding  officer  that  strangers  are  present, 
while  we  all  know  that  the  candid  publication  of  the  debates 
was  not  permitted  in  the  time  of  Dr.  Johnson.  Yet  so 
thoroughly  is  publicity  now  ingrained  in  the  American  and 
Englishman  that  a  suppression  of  this  precious  principle  cannot 
even  be  conceived  of  If  any  serious  attempt  should  be  made 
to  carry  out  the  existing  laA^'  in  England,  and  the  public  were 
really  excluded  from  the  house  of  commons,  a  revolution  would 
be  unquestionably  the  consequence,  and  publicity  would  be 
added  to  the  declaration  of  rights.  We  can  no  more  imagine 
England  or  the  United  States  without  the  reporting  news- 
papers, than  nature  without  the  principle  of  vegetation. 

Publicity  pervaded  the  system  of  American  politics  so  gen- 
erally, that  the  framers  of  our  constitution  probably  never 
thought  of  it,  or,  if  they  did,  they  did  not  think  it  worth  while 
to  provide  for  it  in  the  constitution,  since  no  one  had  doubted 
it.  It  is  part  and  parcel  of  our  common  law  of  political  ex- 
istence. They  did  not  trouble  themselves  with  unnecessaries, 
or  things  which  would  have  had  a  value  only  as  possibly 
completing  a  certain  symmetiy  of  theor}'. 

It  is,  however,  interesting  to  note  that  the  first  distinctly 
authorized  publicity  of  a  legislative  body  in  modern  times 
was  that  of  the  Massachusetts  house  of  representatives,  which 
adopted  it  in  1766.^ 


'  I  follow  the  opinion  of  Mr.  Roliert  C.  Winthrop,  late  Speaker  of  the  house 
of  representatives  of  the  United  StateN,  and  believe  him  to  be  correct,  when  in 
an  address  before  the  Maine  Historical  Society  (Boston,  1849)  he  says :  "  The 
earliest  instance  of  authorized  publicity  being  given  to  the  deliberations  of  a 
legislative  body  in  modern  days,  was  in  this  same  house  of  representatives  of 
Massachusetts,  on  the  3d  day  of  June,  1766,  when,  upon  motion  of  James  Otis, 
and  during  the  debates  which  arose  on  the  question  of  the  repeal  of  the  stamp 
act,  and  of  compensation  to  the  sufferers  by  the  riots  in  Boston  to  which  that  act 
had  given  occasion,  a  resolution  was  carried  '  for  opening  a  gallery  for  such  as 
wished  to  hear  the  debates.'  The  influence  of  this  measure  in  preparing  the 
public  miiid  for  the  great  revolutionary  events  which  were  soon  to  follow,  can 
hardly  be  exaggerated."  The  American  reader  is  referred  to  the  note  at  the  end 
of  this  chapter  for  an  account  of  the  introduction  of  publicity  into  the  senate  of 
the  United  States. 


132 


ON   ^IVIL  LIBERTY 


Publicity  of  speaking  has  its  dangers,  and  occasionally  ex- 
poses to  grave  inconveniences,  as  all  guarantees  do,  and  neces- 
sarily in  a  greater  degree  as  they  are  of  a  more  elementary 
character.  It  is  the  price  at  which  we  enjoy  all  excellence  in 
this  world.  The  science  of  politics  and  political  ethics  must 
point  out  the  dangers  as  well  as  the  formal  and  moral  checks 
which  may  avert  or  migitate  the  evils  arising  from  publicity 
in  general,  and  public  oral  transaction  of  affairs  in  particular. 
It  is  not  our  business  here.  We  treat  of  it  in  this  place  as  a 
guarantee  of  liberty,  and  have  to  show  its  indispdnsableness. 
Those  who  know  liberty  as  a  practical  and  traditional  reality 
and  as  a  true  business  of  life,  as  we  do,  know  that  the  question 
is  not  whether  it  be  better  to  have  publicity  or  not,  but,  being 
obliged  to  have  it,  how  we  can  best  manage  to  avoid  its  dan- 
gers while  we  enjoy  its  fullest  benefit  and  blessing.  It  is  the 
same  as  with  the  air  we  breathe.  The  question  is  not  whether 
we  ought  to  dispense  with  a  free  respiration  of  all-surround- 
ing air,  but  how,  with  free  inhalation,  we  may  best  guard 
ourselves  against  colds  and  other  distempers  caused  by  the 
elementary  requisite  of  physical  life,  that  we  must  live  in  the 
atmosphere.^ 


'  Great  as  the  inconvenience  is  which  arises  from  the  abuse  of  public  speaking, 
and  of  that  sort  of  prolixity  which  in  our  country  is  familiarly  called  by  a  term 
understood  by  every  one,  Speaking  for  Buncombe,  yet  it  must  be  remembered 
that  the  freest  possible,  and  therefore  often  abused,  latitude  of  speaking,  is  fre- 
quently a  safety-valve,  in  times  of  public  danger,  for  which  nothing  else  can  be 
substituted.  The  debates  in  congress,  when  lately  the  Union  itself  was  in  danger, 
lasted  for  entire  months,  and  words  seemed  fairly  to  weary  out  the  nation  when 
every  one  called  for  action.  There  was  no  citizen  capable  of  following  closely 
all  those  lengthy  and  occasionally  empty  debates,  with  all  their  lateral  issues. 
Still,  now  that  the  whole  is  over,  it  may  well  be  asked  whether  there  is  a  single 
attentive  and  experienced  American  who  doubts  that,  had  it  not  been  for  that 
flood  of  debate,  we  must  have  been  exposed  to  civil  disturbances,  perhaps  to  the 
rending  of  the  Union. 

Nevertheless,  it  is  a  fact  that  the  more  popular  an  assembly  is,  the  more  liable 
it  is-  to  suffer  from  verbose  discussions,  and  thus  to  see  its  action  impeded.  This 
is  especially  the  case  in  a  countiy  in  which,  as  in  ours,  a  personal  facility  of  public 
speaking  is  almost  universal,  and  where  an  elocutional  laxity  coexists  with  a 
patient  tenacity  of  hearing,  and  a  love  of  listening  which  can  never  be  surfeited. 


A  ND  SELF-  G  O  VERNMENT. 


133 


Liberty,  I  said,  is  coupled  with  the  public  word,  and  how- 
ever frequently  the  public  word  may  be  abused,  it  is  neverthe- 
less true  that  out  of  it  arises  oratory — the  aesthetics  of  liberty. 
What  would  Greece  and  Rome  be  to  us  without  their  Demos- 
thenes and  Cicero  ?  And  what  would  their  other  writers  have 
been,  had  not  their  languages  been  coined  out  by  the  orator  ? 
What  would  England  be  without  her  host  of  manly  and  mas- 
terly speakers?  Who  of  us  could  wish  to  see  the  treasures 
of  our  own  civilization  robbed  of  the  words  contributed  by  our 


It  has  its  ruinous  effect  upon  oratory,  literature,  the  standard  of  thought,  upon 
vigorous  action,  on  public  business,  and  gives  a  wide  field  to  dull  mediocrity. 
This  anti- Pythagorean  evil  has  led  to  the  adoption  of  the  "  one-hour  rule"  in 
'the  house  of  representatives,  in  congress,  and  (in  1847)  i'^  the  supreme  court  of 
the  United  States.  The  one-hour  rule  was  first  proposed  by  Mr.  Holmes,  of 
Charleston,  in  imitation  of  the  Athenian  one-hour  clepsydra — yes,  the  prince 
of  orators  had  that  dropping  monitor  by  his  side  ! — and  is  now  renewed  by  every 
new  house.  The  English  have  begun  to  feel  the  same  evil,  and  the  adoption 
of  the  same  rule  was  proposed  in  the  commons  in  February,  1849.  ^vX  the 
debate  concluded  adversely  to  it,  after  Sir  Robert  Peel  had  adverted  to  Burke's 
glo»"ious  eloquence.  Our  one-hour  rule,  however,  is  not  entirely  new  in  modern 
times.  In  the  year  1562  (on  the  21st  of  July)  the  Council  of  Trent  adopted  the 
rule  that  the  fathers  in  delivering  their  opinions  should  be  restricted  to  half  an 
hour,  which  having  elapsed,  the  master  of  ceremonies  was  to  give  them  a  sign 
to  leave  off.  Yet,  on  the  same  day,  an  exception  was  made  in  favor  of  Salmeron, 
the  pope's  first  divine,  who  occupied  the  whole  sitting,  (Histoiy  of  the  Life  ot 
Reginald  Pole,  by  T.  Phillips,  Oxford,  1764,  p.  397,)  very  much  as  in  February, 
1849,  the  whole  American  house  called  "go  on"  when  Governor  McDowell  had 
spoken  an  hour.     He  continued  for  several  hours. 

Having  mentioned  the  inconvenience  of  prolix  speaking,  it  may  not  be  im- 
proper to  add  another  passage  of  the  address  of  Mr.  Winthrop,  already  mentioned. 
It  will  be  recollected  that  this  gentleman  has  been  Speaker.  He  knows,  there- 
fore, the  inconvenience  in  its  whole  magnitude.  "Doubtless,"  he  says,  "when 
debates  were  conducted  with  closed  doors,  there  were  no  speeches  for  Buncombe, 
no  clap-trap  for  the  galleries,  no  flourishes  for  the  ladies,  and  it  required  no  hour 
rule,  perhaps,  to  keep  men  within  some  bounds  of  relevancy.  But  one  of  the 
grea'  sources  of  instruction  and  information,  in  regard  both  to  the  general  meas- 
ures of  government  and  to  the  particular  conduct  of  their  own  representatives, 
was  then  shut  out  from  the  people,  and  words  which  might  have  roused  them  to 
the  vindication  of  justice,  or  to  the  overthrow  of  tyranny,  were  lost  in  the  utter- 
ance. The  perfect  publicity  of  legislative  proceedings  is  hardly  second  to  the 
freedom  of  the  press,  in  its  influence  upon  the  progress  and  perpetuity  of  human 
liberty,  though,  like  the  freedom  of  the  press,  it  may  be  attended  with  incon- 
'-;niences  and  abuses." 


134 


OA'  CIVIL  LIBERTY 


speakers,  from  Patrick  Henry  to  Webster?  The  speeches  of 
great  orators  are  a  fund  of  wealth  for  a  free  people,  from 
which  the  school-boy  begins  to  draw  when  he  declaims  from 
his  Reader,  and  which  enriches,  elevates,  and  nourishes  the 
souls  of  the  old. 

Publicity  is  indispensable  to  eloquence.  No  one  speaks 
well  in  secret  before  a  few.  Orators  are  in  this  respect  like 
poets — their  kin,  of  whom  Goethe,  "  one  of  the  craft,"  says 
that  they  cannot  sing  unless  they  are  heard. 

The  abuse  of  public  speaking  has  been  alluded  to.  It  is  a 
frequent  theme  of  blame  and  ridicule,  frequently  dwelt  upon 
by  those  who  disrelish  "  parliamentarism,"  but  it  is  necessary 
to  observe  that  if  civil  liberty  demands  representative  legis- 
lative bodies,  which  it  assuredly  does,  these  bodies  have  no 
meaning  without  exchange  and  mutual  modification  of  ideas, 
without  debate,  and  actual  debate  requires  the  spoken  word. 
I  consider  it  an  evil  hour  not  only  for  eloquence,  but  for  liberty 
itself,  when  our  senate  first  permitted  one  of  its  members  to 
read  his  speeches,  on  account  of  some  infirmity.  The  true 
principle  has  now  been  abandoned,  and  written  speeches  are 
almost  as  common  in  congress  as  they  were  in  the  former 
house  of  representatives  of  France,  where,  however,  I  may 
state  on  authority,  they  became  rarer  as  constitutional  liberty 
increased  and  developed  its  energy. 

All  governments  hostile  to  liberty  are  hostile  to  publicity, 
and  parliamentary  eloquence  is  odious  to  them,  because  it  is  a 
great  power  which  the  executive  can  neither  create  nor  con- 
trol. There  is  in  imperial  France  a  positive  hatred  against 
the  "  tribwier  Mr.  Cousin,  desirous  of  leading  his  readers 
to  compare  the  imperial  system  with  that  of  the  past  govern- 
ments since  the  restoration,  says  of  the  Bourbons  that,  what- 
ever it  may  be  the  fashion  to  say  of  them,  "  they  gave  us 
at  any  rate  the  tribune,"  (the  public  word,)  while  Mr.  de 
Morny,  brother  of  Napoleon  III.,  issued  a  circular  to  the 
prefects,  when  minister  of  the  interior,  in  1852,  in  which  the 
publicity  of  parliamentaiy  government  is  called  theatricals 
It  is  remarkable  that  this  declaration  should  have  come  from  a 


AND  SELF-GOVERNMENT.  135 

government  which,  above  all  others,  seems,  in  a  great  measure 
to  rely  on  military  and  other  shows. 

Publicity  begets  confidence,  and  confidence  is  indispensable 
for  the  government  of  free  countries — it  is  the  soul  of  loyalty 
in  jealous  freemen.  This  necessar}^  influence  is  twofold — con- 
fidence in  the  government,  and  confidence  of  society  in  itself 
It  is  with  reference  to  the  latter  that  secret  political  societies 
in  free  countries  are  essentially  injurious  to  all  liberty,  in  ad- 
dition to  their  preventing  the  growth  and  development  of  manly 
character,  and  promoting  vanity ;  that  they  are,  as  all  secret 
societies  must  inherently  be,  submissive  to  secret  superior  will 
and  decision, — a  great  danger  in  politics, — and  unjust  to  the 
rest  of  the  citizens,  by  deciding  on  public  measures  and  men 
without  the  trial  of  public  discussion,  and  by  bringing  the  in- 
fluence of  a  secretly  united  body  to  bear  on  the  decision  or 
election.  Secret  societies  in  free  countrie..  are  cancers  against 
which  history  teaches  us  that  men  who  value  their  freedom 
ought  to  guard  themselves  most  attentively.  It  would  lead 
us  too  far  from  our  topic  were  we  to  discuss  the  important  fact 
that  mysterious  and  secret  societies  belong  to  paganism  rather 
than  to  Christianity,  and  we  conclude  these  remarks  by  ob- 
serving that  those  societies  which  may  be  called  doubly  secret, 
that  is  to  say,  societies  which  not  only  foster  certain  secrets 
and  have  secret  transactions,  but  the  members  of  which  are 
bound  to  deny  either  the  existence  of  the  society  or  their 
membership,  are  schools  of  untruth  ;  and  that  parents  as  well 
as  teachers,  in  the  United  States,  would  do  no  more  than  per- 
form a  solemn  duty,  if  they  should  use  every  means  in  their 
power  to  exhibit  to  those  whose  welfare  is  entrusted  to  them, 
the  despicable  character  of  the  "thousand  juvenile  secret  soci- 
eties which  flourish  in  our  land,  and  which  are  the  preparatory 
schools  for  secret  political  societies.^ 


I  The  following  note  consists  of  an  article  by  Mr.  James  C.  Welling,  of  the 
National  Intelligencer,  Washington  City.  It  appeared  on  the  30th  of  October, 
185S,  in  consequence  of  some  questions  I  had  put  regarding  a  previous  article  on 
my  remarks  on  Publicity  in  the  United  States.  Mr.  Welling  had  doubtless  free 
access  to  the  ample  stores  of  personal  recollections  possessed  by  the  founders  of 


136 


ON  CIVIL  LIBERTY 


that  public  journal.  The  student  of  history  will  find  it  an  instructive  document, 
and  I  have  preferred  to  give  the  whole,  even  with  the  introduction  on  the  early 
intercourse  between  congress  and  the  President  of  the  United  States,  partly  on 
account  of  its  antiquarian  interest,  partly  because  it  is  not  unconnected  with  the 
publicity  of  debate  in  the  senate. 

Mr.  Welling  says  that  it  has  been  remarked  that  the  principle  of  publicity  seems 
to  have  so  thoroughly  pervaded  all  the  politics  of  the  United  States  that  the  framers 
of  our  constitution  never  thought  of  it,  or,  if  they  did,  they  thought  it  hardly  worth 
while  to  make  special  provision  for  it,  since  none  doubted  its  observance.  While 
this  statement  has  a  deep  foundation  in  much  of  our  civil  history  during  the 
period  of  the  revolution  and  the  formation  of  our  present  constitution,  it  should 
not  be  forgotten  that  the  sessions  of  our  continental  congress  were  held  in  secret, 
and  even  after  the  formation  of  our  present  constitution,  one  branch  of  the 
national  legislature,  for  more  than  five  years,  sat  with  closed  doors.  We  allude 
to  the  senate,  whose  deliberations,  unlike  those  of  the  house  of  representatives, 
were  conducted  in  secret  during  the  whole  of  the  first  and  second  congresses,  and 
also  during  a  part  of  the  third.  As  the  particulars  connected  with  this  fact  in 
our  parliamentary  history  are  perhaps  not  familiarly  known  to  every  reader,  we 
have  thought  it  migh'  not  be  without  interest  to  recall  some  of  the  reminiscences 
corroborative  of  a  statement  which  at  the  present  day,  and  with  our  established 
notions,  must  seem  not  a  little  extraordinary  and  anomalous.  In  doing  so,  we 
may  take  occasion  to  allude  incidentally,  by  way  of  preface,  to  a  few  subsidiary 
topics  relating  to  the  forms  of  official  intercourse  existing  between  the  executive 
and  legislative  departments  of  the  government  during  the  earlier  days  of  the 
republic. 

The  first  session  of  the  first  congress  of  the  United  States  held  under  the  con- 
stitution framed  and  submitted  by  the  federal  convention  in  Philadelphia  was 
begun  in  the  city  of  New  York  on  the  4th  of  March,  1789.  Neither  house, 
however,  could  at  once  proceed  to  the  transaction  of  business,  from  the  want  of  a 
quorum,  which  was  secured  in  the  popular  branch  only  on  the  ist  of  April  fol- 
lowing, and  in  the  senate  on  the  6th  of  the  same  month.  On  that  day  the  latter 
body,  having  elected  a  president  pro  tern.,  proceeded,  in  the  presence  of  the 
house  of  representatives,  assembled  in  the  senate  chamber  by  invitation,  to 
count  the  votes  of  the  electors  of  the  several  states  for  President  and  Vice-Presi- 
dent of  the  United  States,  when  it  was  found  that  George  Washington  was  unan- 
imously elected  to  the  former  office  by  the  voice  of  the  eleven  states  then  com- 
posing the  Union,  (Rhode  Islaiid  and  North  Carolina  not  having  yet  adopted 
the  constitution,)  and  that  John  Adams  was  chosen  Vice-President  by  a  majority 
of  the  votes  cast  for  that  office.  The  senate  thereupon  appointed  Mr.  Charles 
Thomson  (long  the  clerk  of  the  continental  congress)  to  notify  Gen.  Washing- 
ton, and  Mr.  Sylvanus  Bourne  to  notify  John  Adams,  of  their  election  to  the 
offices  for  which  they  had  been  respectively  designated. 

Mr.  Adams  took  his  chair  as  president  of  the  senate  on  the  21st  of  the  same 
month,  and  on  the  30th  Gen.  Washington  received  the  oath  of  office,  as  President 
of  the  United  States,  in  the  senate  chamber,  in  the  presence  of  both  houses  of 
congress,  assembled  on  the  occasion  to  witness  the  ceremonial.     The  oath  was 


AND  SELF-GOVERNMENT. 


^Z7 


administered  by  the  chancellor  of  the  State  of  New  York,  who  proclaimed,  as  the 
same  was  accepted  by  the  president,  "  Long  live  George  Washington,  President 
of  the  United  States."  The  president  then  resumed  the  seat  from  which  he  had 
risen  to  take  the  oath,  and,  after  a  short  pause,  rose  and  delivered  before  the 
senate  and  house  of  representatives  his  inaugural  address.  On  its  conclusion,  the 
president,  the  vice-president,  the  senate,  and  the  house  of  representatives  pro- 
ceeded to  St.  Paul's  Chapel,  in  New  York,  where  divine  sei-vice  was  performed 
by  the  chaplain  of  congress,  after  which  the  president  was  reconducted  to  his 
house  by  a  committee  appointed  for  that  purpose. 

After  the  celebration  of  these  religious  exercises  the  senate  reassembled  and 
appointed  a  committee  to  prepare  an  "  answer  to  the  president's  speech."  In 
the  house  of  representatives  a  similar  committee  was  appointed  on  the  following 
day.  The  reply  of  the  senate  was  read  and  adopted  in  that  body  on  the  7th  of 
May,  and  agreeably  to  previous  arrangement  was  delivered  to  the  president  at  his 
own  house  on  the  iSlh  following,  the  senate  waiting  upon  the  president  for  this 
purpose,  with  the  vice-president,  their  presiding  officer,  at  their  head.  The  presi- 
dent, on  receiving  the  address,  made  a  brief  and  appropriate  response.  The 
reply  of  the  house  of  representatives  was  read  and  adopted  on  the  5th  of  May, 
and,  by  a  similar  preconcert,  was  delivered  to  the  president  on  the  8lh  of  the 
same  month,  in  a  room  adjoining  the  representatives'  chamber,  where  the  speaker, 
attended  by  the  members  of  the  house,  placed  in  the  president's  hands  a  copy 
of  the  address,  for  which  the  president  returned  his  thanks  in  a  few  appropriate 
remarks. 

Such  was  the  nature  of  the  ceremonial  observed  in  the  official  communications 
interchanged  between  the  president  and  the  two  houses  of  congress  at  the  open- 
ing of  every  session  of  congress  during  the  administration  of  Washington  and 
John  Adams.  On  the  accession  of  Mr.  Jefferson,  the  practice  of  delivering  ihe 
annual  presidential  speech  in  person  before  both  houses  of  congress  at  its  open- 
ing was  superseded  by  the  present  custom  of  sending  a  written  message.  And 
with  this  change  the  habit  of  preparing  a  formal  reply  on  the  part  of  both  houses 
to  the  recommendations  of  the  president  fell  into  similar  desuetude.  Mr.  Jef- 
ferson, it  is  well  known,  was  subsequently  accustomed  to  point  to  this  change  as 
one  of  the  "reforms"  he  had  effected  in  what  he  called  the  "Anglican  tenden- 
cies" and  "royal  usages"  of  our  government  under  the  administration  of  the 
federalists.* 


*  It  may  not  be  uninteresting  to  add  that  President  Jefferson,  at  the  time  when  this 
change  was  made,  attributed  it  to  other  causes.  His  first  annual  address  to  both 
houses  of  congress  was  sent  in  on  the  8th  of  December,  1801,  and  was  accompanied 
with  the  subjoined  letter,  addressed  to  the  presiding  officer  of  each  body : 

December  8,  1801. 

Sir:  The  circumstances  under  which  we  find  ourselves  at  this  place  [Washington] 
rendering  inconvenient  the  mode  heretofore  practised,  of  making  by  personal  address 
the  first  communications  between  the  legislative  and  executive  branches,  I  have 
adopted  that  by  message,  as  used  on  all  subsequent  occasions  through  the  session. 
In  doing  this  I  have  had  principal  regard  to  the  convenience  of  the  legislature,  to  the 
economy  of  their  time,  to  their  relief  from  the  embarrassment  of  immediate  answers 


138 


ON  CIVIL  LIBERTY 


To  resume  the  principal  topic  of  remark  in  the  present  article,  we  repeat  that 
the  senate,  in  the  earlier  days  of  the  government,  sat  rvith  closed  doors,  as  well 
during  its  legislative  as  in  its  executive  sessions.  Its  debates,  therefore,  unlike 
those  of  the  house  of  representatives,  were  for  a  time  held  in  secret;  but  it  was 
provided  by  a  resolution  passed  on  the  19th  of  May,  1789,  that  one  hundred  and 
twenty  copies  of  the  journal  of  the  legislative  proceedings  of  the  senate  should  be 
printed  once  a  month  for  distribution  among  the  members  of  the  body,  and,  we 
suppose,  for  partial  dissemination  among  the  public,  since  it  was  provided  that 
each  member  should  be  furnished  with  but  a  single  copy  on  his  own  account. 

At  this  distance  of  time  we  may  not  perhaps  be  able  to  understand  or  state  the 
reasons  which  determined  the  senate  to  sit  with  closed  doors  in  all  their  deliliera- 
tions,  as  still  in  those  which  pertain  to  executive  business.  It  is  probable  that 
the  habit  grew  out  of  the  fact  that  the  senate,  in  the  original  theory  of  its  consti- 
tution, was  regarded  primarily  as  a  confidential  and  advisory  council  to  the  ex- 
ecutive; and,  as  is  well  known,  its  earlier  sessions  were  pre-eminently  occupied 
in  executive  business.  In  relation  to  measures  of  legislation  it  seems  to  have  been 
conceived  that  its  function  was  mainly  revisory  and  deliberative;  and  hence  the 
greater  prominence  of  the  house  in  initiating  and  debating  not  only  "  revenue 
bills,"  which  it  was  provided  by  the  constitution  should  be  originated  only  by  the 
representatives,  but  also  other  measures  of  federal  legislation.  In  evidence  of 
this  fact  we  may  state  that  the  senate  was  wholly  without  standing  committees 
until  the  year  1S16,  when  during  the  second  session  of  the  fourteenth  congress 
it  was  determined  to  provide  for  their  appointment.  In  the  house  they  had  been 
raised  by  a  standing  rule  as  early  as  the  year  1799,  although  at  first  their  number 
was  restricted  to  five — a  committee  respectively  on  elections,  claims,  commerce, 
ways  and  means,  and  on  revisal  and  on  unfinished  business. 

The  first  executive  business  of  the  senate  was  transacted  on  the  25th  of  May, 
1789,  when  the  president  communicated  for  the  advice  and  consent  of  the  senate 
certain  treaties  made  with  the  northern  and  northwestern  Indians.  At  subse- 
quent sessions  he  sent  in  by  letter  his  nominations  for  various  offices  appointed  to 
be  filled  with  the  advice  and  consent  of  the  same  body.  The  senate  having 
refused  to  ratify  the  nomination  of  Mr.  Benjamin  Fishbourn  as  naval  officer  for 
the  port  of  Savannah,  President  Washington,  on  the  7th  of  August,  addressed 
a  message  to  the  body  vindicating  his  reasons  for  nominating  that  gentleman, 
and  suggesting  to  the  senate  the  expediency  of  communicating  to  him  their  views 
on  occasions  where  the  propriety  of  his  nominations  appeared  questionable  to 
them. 

Moved  by  this  intimation  of  the  president,  the  senate  appointed  a  committee 
to  wait  on  him  for  the  purpose  of  concerting  a  mode  of  communication  proper  to 
be  pursued  between  both  parties  in  the  formation  of  treaties  and  making  appoint- 


on  subjects  not  yet  fully  before  them,  and  to  the  benefits  thence  resultino;  to  the  public 
afifairs.  Trusting  that  a  procedure  founded  in  these  motives  will  meet  their  approba- 
tion, I  beg  leave,  through  you,  sir,  to  communicate  the  enclosed  message,  with  the 
documents  accompanying  it,  to  the  honorable  the  senate,  and  pray  you  to  accept,  fot 
yourself  and  them,  the  homage  of  my  high  respect  and  consideration. 

The  Hon.  the  President  of  the  senate.  TH.  JEFFERSON. 


AND  SELF-GOVERNMhi\  .  1 39 

meuts  to  office.  Accordingly  it  was  resolved  that,  in  conformity  with  the  presi- 
dent's pleasure,  he  might  make  his  nominations  to  the  senate  either  in  writing  or 
in  person ;  and  it  was  further  provided  that  for  this  purpose  he  might  wait  on  the 
senate  in  their  own  chamber,  (in  which  case  he  should  occupy  the  chair  of  the 
president  of  the  senate,)  or  might  summon  the  president  of  the  senate  and  the 
senators  to  meet  him  at  such  place  as  he  should  designate.  It  was  provided, 
however,  that  all  questions,  whether  in  the  presence  or  absence  of  the  President 
of  the  United  States,  should  be  put  by  the  president  of  the  senate,  and  "  that  the 
senators  should  signify  their  assent  or  dissent  by  answering,  viva  voce,  aye  or  no." 
On  the  day  following  the  adoption  of  this  minute,  that  is  on  the  22d  of  August,  1789, 
it  appears  from  the  journal  that  the  President  of  the  United  States  came  into  the 
senate  chamber,  attended  by  General  Knox,  and  laid  before  the  senate  a  state- 
ment of  facts  in  reference  to  the  negotiation  of  certain  treaties  with  various  In- 
dian tribes.  Desiring  to  fix  certain  principles  on  which  the  negotiations  should 
be  conducted,  he  reported  to  the  senate  a  series  of  questions,  to  each  of  which 
he  requested  a  categorical  answer,  to  guide  him  in  giving  instructions  to  the  com- 
missioners appointed  to  treat  with  the  Indians.  The  questions  were  seven  in 
number,  and  were  considered  throughout  two  daily  sessions,  in  the  presence  of 
the  president,  and,  as  appears  from  the  journal,  of  General  Knox. 

How  long  the  relations  between  the  president  and  the  senate  remained  on  this 
footing  we  are  unable  to  say  with  any  accui-acy,  though  the  practice  of  his  per- 
sonal attendance  during  their  sessions  in  executive  business  seems  to  have  been 
abandoned  after  a  time ;  and  authentic  tradition  records  that  its  disuse  was  has- 
tened by  the  blunt  speeches  of  certain  senators,  who  intimated  that  the  presence 
of  the  president  operated  as  a  restraint  on  them  in  canvassing  the  merits  of  the 
candidates  submitted  for  their  advice  and  consent.  It  soon  became  habitual  for 
the  president  to  communicate  all  his  nominations  to  the  senate  in  writing. 

As  has  been  already  stated,  the  proceedings  of  the  senate,  as  well  legislative 
as  executive,  were  conducted  during  the  first  session  with  closed  doors.  During 
the  second  session  of  the  first  congress,  which  was  begun  in  New  York  on  the 
4th  of  January,  1790,  the  same  custom  was  retained,  though,  as  appears  from  the 
journal,  not  without  protest  and  dissent  on  the  part  of  some  senators.  For  it 
appears  that  on  the  29th  of  April  following  it  was  moved  "  that  the  doors  of  the 
senate  chamber  shall  be  open  when  the  senate  is  sitting  in  their  legislative 
capacity,  to  the  end  that  such  of  the  citizens  of  the  United  States  as  may  choose 
to  hear  the  debates  of  this  house  may  have  an  opportunity  of  so  doing."  This 
resolution,  being  postponed  for  consideration  on  the  following  Jay,  was  then 
taken  up,  and,  after  debate,  rejected. 

At  a  third  session  of  the  first  congress,  begun  in  Philadelphia  on  the  6th  of 
December,  1790,  it  was  again  proposed,  on  the  23d  of  February  following,  "  that 
it  be  a  standing  rule  that  the  doors  of  the  senate  chamber  remain  open  whilst  the 
senate  shall  be  sitting  in  a  legislative  capacity,  except  on  sucli  occasions  as,  in 
•their  judgment,  may  require  secrecy ;  and  that  this  rule  shall  commence  and  be 
in  force  on  the  first  day  of  the  next  session  of  congress."  And  to  this  end  it 
was  proposed  "that  the  secretary  of  the  senate  request  the  commissioners  of  the 
city  and  county  of  Philadelphia  to  cause  a  proper  gallery  to  be  erected  for  the 


140 


ON  CIVIL  LIBERTY 


accommodation  of  the  audience."  After  debate,  extending  through  two  days, 
the  proposition  was  rejected  by  a  vote  of  9  yeas  to  17  nays.  The  names  of  those 
voting  in  the  affirmative  are  Messrs.  Butler,  Foster,  Gunn,  Hawkins,  King,  Lee, 
Maclay,  Monroe,  and  Schuyler.  Those  voting  in  the  negative  were  Messrs. 
Bassett,  Carroll,  Dalton,  Dickinson,  Ellsworth,  Elmer,  Few,  Henry,  Johnson, 
Johnston,  Izard,  Langdon,  Morris,  Read,  Stanton,  Strong,  and  Wingate. 

The  first  session  of  the  second  congress  was  begun  at  Philadelphia  on  the  24th 
of  October,  1791.  On  the  26th  of  March  following — a  few  weeks  before  the 
adjournment  of  congress  at  that  session — a  resolution  identical  in  terms  with  that 
rejected  at  the  last  session  of  the  first  congress  was  moved  by  Mr.  Monroe  and 
seconded  by  Mr.  Lee,  both  of  Virginia.  The  proposition  met  with  the  same  fate, 
receiving  fewer  votes  than  at  the  former  session.  Some  days  after  the  rejection 
of  this  resolution  it  was  moved  "  that  when  the  senate  are  sitting  in  their  legis- 
lative capacity  the  members  of  the  house  of  representatives  may  be  admitted  to 
attend  the  debates,  and  each  member  of  the  senate  may  also  admit  a  number  not 
exceeding  two  persons;  provided  the  operation  of  this  resolution  be  suspended 
until  the  senate  chamber  is  sufficiently  enlarged."  This  proposition  also  failed 
to  be  adopted,  receiving  only  six  votes. 

We  have  recited  these  several  and  ineffectual  attempts  to  procure  the  abroga- 
tion of  this  established  rule  of  the  senate  for  the  purpose  of  showing  that  it  did 
not  grow  up  as  an  unregarded  usage,  but  was  founded  on  considerations  satis- 
factory to  a  majority  of  the  senate  at  tliat  day.  Nor  does  it  appear  to  have  been 
a  question  of  party  politics,  since  we  find  federalists  voting  with  republicans  for 
its  abolition,  and  republicans  voting  with  federalists  for  its  retention. 

The  first  session  of  the  third  congress  of  the  United  States,  which  commenced 
at  Philadelphia  on  the  2d  of  December,  1793,  was  destined  to  witness  the  over- 
throw of  the  i-ule  which  had  previously  obtained  on  this  point.  The  senate  was 
called  at  this  session  to  consider  and  decide  a  question  which  elicited  a  large 
share  of  public  interest,  because  of  the  political  susceptibilities  which  had  been 
awakened  by  its  discussion.  We  allude  to  the  contest  raised  respecting  the 
eligibility  of  Mr.  Albert  Gallatin  as  a  member  of  the  senate  from  the  state  of 
Pennsylvania.  On  the  first  day  of  the  session  of  that  year  a  petition  was  pre- 
sented by  Conrad  Laub  and  others,  representing  that  Mr.  G.  at  the  date  of  his 
election  had  not  been,  as  the  constitution  requires,  "  nine  years  a  citizen  of  the 
United  States."  The  committee  to  which  the  whole  subject  was  referred  re- 
ported adversely  to  the  claims  of  Mr.  Gallatin  on  the  31st  of  December,  and  the 
report,  after  being  read  and  ordered  to  lie  over  for  future  consideration,  was 
taken  up  on  the  9th  of  January  following,  and  discussed  through  several  suc- 
cessive days,  when,  on  the  13th  of  the  same  month,  the  matter  was  re-committed 
to  a  special  committee  of  elections  appointed  for  the  purpose  of  hearing  both 
parties  to  the  contest.  Before  this  committee  reported,  and  on  the  i6th  of 
January,  1794,  Mr.  Martin,  of  North  Carolina,  moved  the  adoption  of  the  follow- 
ing formal  resolutions  against  the  principles  and  policy  of  the  existing  regulations 
of  the  senate  in  regard  to  the  secrecy  of  its  deliberations : 

"Resolved,  That  in  all  representative  governments,  the  representatives  are 
responsil)le  for  tlicir  conduct  to  their  constituents,  who  are  entitled  to  such  in- 
formation that  a  discrimination  and  just  estimate  be  made  thereof. 


AND  SELF-GOVERNMENT.  I4I 

"  Resolved,  That  the  senate  of  the  United  States,  being  the  representatives  of 
the  sovereignties  of  the  individual  states,  whose  basis  is  the  people,  owe  equal 
responsibility  to  the  powers  by  which  they  are  appointed,  as  if  that  body  were 
derived  immediately  from  the  people,  and  that  all  questions  and  deiiatcs  arising 
thereupon  in  their  legislative  and  judiciary  capacity,  ought  to  be  public. 

"Resolved,  That  the  mode  adopted  by  the  senate  of  publishing  their  journals, 
and  extracts  from  them,  in  newspapers,  is  not  adequate  to  the  purpose  of  circu- 
lating satisfactory  information.  While  the  principles  and  designs  of  the  individual 
members  are  withheld  from  public  view,  responsibility  is  destroyed,  which,  on 
the  publicity  of  their  deliberations,  would  be  restored ;  the  constitutional  powers 
of  the  senate  become  more  important,  in  being  more  influential  over  the  other 
branch  of  the  legislature  ;  abuse  of  power,  mal-administration  of  office,  more 
easily  detected  and  corrected  ;  jealousies,  rising  in  the  public  mind  from  secret 
legislation,  prevented ;  and  greater  confidence  placed  iDy  our  fellow-citizens  in 
the  national  government,  by  which  their  lives,  liberties,  and  properties  are  to  be 
secured  and  protected. 

"  Resolved,  therefore.  That  it  be  a  standing  rule  that  the  doors  of  the  senate 
chamber  remain  open  while  the  senate  shall  be  sitting  in  a  legislative  and  judi- 
ciary capacity,  except  on  such  occasions  as  in  their  judgment  may  require  secrecy ; 
and  that  this  rule  commence  on  the day  of ." 

These  resolutions,  being  called  up  on  the  morrow,  were  postponed  successively 
from  day  to  day,  when,  on  the  loth  day  of  February,  the  committee  which  had 
Mr.  Gallatin's  case  in  charge  made  their  report  to  the  senate,  and  a  day  was 
fixed  for  its  consideration.  Immediately  on  the  presentation  of  the  report,  it  was 
moved  by  a  member  "  that  the  doors  of  the  senate  be  opened  and  continued  open 
during  the  discussion  upon  the  contested  election  of  Albert  Gallatin,"  which 
resolution  zuas  adopted  on  the  llth  of  Fehrtiary,  1794.  Meanwhile  the  series  of 
resolutions  abolishing  the  whole  system  of  secrecy  during  legislative  proceedings 
was  still  pending,  and  came  up  for  consideration  on  the  19th  of  February,  when 
each  resolution  was  finally  rejected,  and  a  substitute  offered  in  the  following 
terms  : 

"  Resolved,  That  after  the  end  of  the  present  session  of  congress,  and  so  soon 
as  suitable  galleries  shall  Le  provided  for  the  senate  chamber,  the  said  galleries 
shall  be  permitted  to  be  opened  every  morning,  so  long  as  the  senate  shall  be 
engaged  in  their  legislative  capacity,  unless  in  such  cases  as  may,  in  the  opinion 
of  the  senate,  require  secrecy,  after  which  the  said  galleries  shall  be  closed." 

This  resolution  was  passed  on  the  following  day  by  a  vote  of  nineteen  yea:i  to 
eight  nays.  Those  who  voted  in  the  affirmative  were  Messrs.  Bradley,  Brown, 
Butler,  Edwards,  Ellsworth,  Foster,  Gallatin,  Gunn,  Hawkins,  Jackson,  King, 
Langdon,  Livermore,  Martin,  Monroe,  Potts,  Taylor,  and  Vining.  Those  who 
voted  in  the  negative  were  Messrs.  Bradford,  Cabot,  Frelinghuysen,  Izard, 
Mitchell,  Morris,  Rutherfurd,  and  Strong. 

So  this  regulation  of  the  senate  was  prospectively  repealed  and  declared  in- 
operative "  after  the  present  session,"'  as  by  a  previous  resolution  it  had  been 
expressly  suspended  during  the  debate  on  the  case  of  Mr.  Gallatin.  Yet  this 
step  was  not  taken  without  reservation  and  caution,  as  is  apparent  from  the  fact 
that  on  the  same  day  with  the  passage  of  the  prospective  resolution,  it  was  unani- 
mously resolved  "  That,  on  a  motion  made  and  seconded  to  shut  the  doors  of  the 
senate,  on  the  discussion  of  any  business  which  may,  in  the  opinion  of  a  member, 


142 


ON  CIVIL   LIBERTY 


require  secrecy,  the  president  shall  direct  the  gallery  to  be  cleared;  and  that 
during  the  discussion  of  such  motion  the  doors  shall  remain  shut." 

Jt  only  remains  for  us  to  add,  in  conclusion,  that  on  the  day  following  the 
passage  of  these  resolutions  the  case  of  Mr.  Gallatin  was  debated  in  open  senate. 
The  discussion  extended  through  several  days,  and  was  conducted  in  the  form 
of  a  trial,  Mr.  Gallatin  affirming  his  right  to  the  character  of  a  citizen  of  the 
United  States,  and  Mr.  Lewis,  a  member  of  the  Pennsylvania  bar,  attended  by 
Mr.  Schmyser,  a  member  of  the  state  senate  of  Pennsylvania,  appearing  as  man- 
agers of  the  prosecution  on  the  part  of  the  petitioners.  The  pleadings,  opened 
on  the  2ist  of  February,  were  closed  on  the  28th  of  the  same  month,  when  the 
senate  decided  that  the  election  of  Mr.  Gallatin  was  void,  in  consequence  of  his 
not  having  been  a  citizen  of  the  United  States  during  the  term  of  years  required 
by  the  constitution  as  a  qualification  for  membership  in  the  United  States  senate. 
This  case  being  settled,  the  doors  of  the  senate  were  closed  against  the  public 
during  the  residue  of  the  session;  but  since  that  period,  so  far  as  we  can  recall, 
the  legislative  deliberations  of  the  body  have  been  uniformly  conducted  in 
public,  without  any  interruption  other  than  that  which  has  sometimes  arisen  from 
the  inadvertence  of  the  senate,  in  resuming  its  legislative  discussions  after  a  secret 
session,  and  without  thinking  for  a  time  to  re-open  the  doors  which  had  been 
closed  during  the  transaction  of  executive  business. 

We  need  hardly  say  that  it  has  been  frequently  proposed  to  abolish  the  secrecy 
of  the  senate  even  when  called  to  sit  in  judgment  on  the  treaties  formed  or  the 
nominations  submitted  by  the  executive  branch  of  the  government.  But  the 
propriety  of  such  a  reservation,  made  in  behalf  of  diplomatic  negotiations  not  yet 
brought  to  a  close,  is  too  manifest  to  need  remark,  while  the  freedom  and  inde- 
pendence which  the  senator  should  enjoy  in  canvassing  the  propriety  and  char- 
acter of  the  official  appointments  made  with  his  advice  and  consent,  plead 
perhaps  with  equal  force  in  favor  of  retaining  the  rule  so  far  as  it  relates  to  this 
other  branch  of  executive  business.  The  injunction  of  secrecy  is  from  time  to 
time  removed  by  resolution  of  the  senate  from  all  subjects  of  popular  concern 
whose  publication  can  no  longer  frustrate  the  ends  of  prudent  legislation. 


AND  SELF-GOVERNMENT. 


142 


CHAPTER    XIV. 

SUPREMACY    OF   THE    LAW. — TAXATION. — DIVISION    OF    POWER. 

19.  The  supremacy  of  the  law,  in  the  sense  in  which  it  has 
already  been  mentioned,  or  the  protection  against  the  abso- 
lutism of  one,  of  several,  or  the  people,  (which,  practically, 
and  for  common  transactions,  means  of  course  the  majority,) 
requires  other  guarantees  or  checks  of  great  importance. 

It  is  necessary  that  the  public  funds  be  under  close  and 
efficient  popular  control,  chiefly,  therefore,  under  the  super- 
vision of  the  popular  branch  of  the  legislature,  which  is  like- 
wise the  most  important  branch  in  granting  the  supplies,  and 
the  one  in  which,  according  to  the  English  and  American 
fundamental  laws,  all  money  bills  must  originate.  The  Eng- 
lish are  so  jealous  of  this  principle,  that  the  commons  will  not^ 
even  allow  the  lords  to  propose  amendments  affecting  money 
grants  or  taxation,'  ^ 


•  While  these  sheets  were  passing  through  the  press,  (March,  1859,)  the  house 
of  representatives,  at  Washington,  refused  to  consider  certain  amendments, 
passed  in  the  senate,  for  the  puqDose  of  raising  the  postage  on  letters,  the  house 
declaring  by  resolution  that  these  amendments  interfered  with  tlie  constitutional 
and  exclusive  right  of  the  house  to  originate  bills  affecting  the  revenue. 

2  [Can  the  house  of  lords  reject  a  money  bill?  In  1671  and  16S9  it  was 
admitted  that  they  could.  The  lords,  however,  abstained  from  interfering 
with  bills  affecting  the  supplies,  and  only  now  and  then  rejected  or  postponed 
such  bills  as  bore  incidentally  on  supplies  and  taxation,  until  i860,  when  they 
postponed  the  second  reading  of  the  Paper  Duties  Repeal  Bill  for  six  months. 
This  led  to  lively  discussion  of  the  privileges  of  the  house  of  commons ;  to  a 
search  for  precedents ;  and  to  resolutions  of  the  commons,  one  of  which  was 
that,  although  the  lords  had  sometimes  exercised  the  power  of  rejecting  bills  of 
various  descriptions  relating  to  taxation,  yet  the  exercise  of  that  power  was 
"justly  regarded  by  the  commons  with  peculiar  jealousy,  as  affecting  the  right  to 
grant  supplies,  and  to  provide  the  ways  and  means  for  the  service  of  the  year." 
May,  u,  s.  i.  chap.  7,  p.  449,  whose  words  we  have  in  part  used.] 


144  ^^  CIVIL  LIBERTY 

If  the  power  over  the  pubhc  treasurj^,  and  thar  of  imposing 
taxes,  be  left  to  the  executive,  there  is  an  end  to  public  liberty. 
Hampden  knew  it  when  he  made  the  trifling  sum  of  a  pound 
of  unlawfully  imposed  ship-money  a  great  national  issue;  and 
our  Declaration  of  Independence  enumerates,  as  one  of  the 
gravest  grievances  against  the  mother  country,  that  England 
"has  imposed  taxes  without  our  consent." 

One  of  the  most  serious  mistakes  of  those  who  are  not 
versed  in  liberty  is  to  imagine  that  liberty  consists  in  withhold- 
ing the  necessary  power  from  government.  Liberty  is  not  of 
a  negative  character.  It  does  not  consist  in  merely  denying 
power  to  government.  Government  must  have  power  to  per- 
form its  functions,  and  if  no  provision  is  made  for  an  orderly 
and  organic  grant  of  power,  it  will,  in  cases  of  necessity,  arro- 
gate it.  A  liberty  thus  merely  hedging  in,  would  resemble 
embankments  of  the  Mississippi  without  an  outlet  for  freshets. 
No  one  believes  that  there  would  be  sufficient  time  to  repair 
the  crevasse.  This  applies  to  all  the  concerns  of  government,  and 
especially  to  appropriations  of  money.  Merely  denying  money 
to  government,  or,  still  Avorse,  not  creating  a  proper  organism 
for  granting  it,  must  lead  either  to  inanity  or  to  executive 
plundering ;  but  it  is  equally  true  that  the  strictest  possible 
limitation  and  hedging  in,  by  law,  of  the  money  grants,  are  as 
requisite  for  the  cause  of  liberty  as  the  avoidance  of  the  error 
I  have  just  pointed  out.  This  subject  is  well  treated  in  "  The 
Federalist,"'  and  the  insufficiency  of  our  ancient  articles  of 
confederation  was  one  of  the  prominent  causes  which  led  our 
forefathers  to  the  adoption  of  the  federal  constitution.  Lord 
Nugent  truly  calls  the  power  of  granting  or  refusing  supplies, 
vested  in  parliament,  but  especially  in  the  house  of  commons, 
or,  as  he  says,  "the  entire  and  independent  control  of  parlia- 
ment over  the  supplies,"  "the  stoutest  buttress  of  the  English 
constitution."' 


'"Federalist,"  No.   xxx.  and    sequel,  Concerning  taxation,  and  other  parts 
of  that  sage  bo^k. 

»  "Memorials  of  John  Hampden,"  vol.  i.  p.  212,  London,  1832. 


AND  SELF-GOVERNMENT.  145 

It  is  the  Anglican  rule  to  make  but  short  appropriations, 
and  to  make  appropriations  for  distinct  purposes.  We  insist 
still  more  on  this  principle  than  the  English,  and  justly  de- 
mand that  appropriations  be  made  as  distinct  and  specific  as 
possible,  and  that  no  transfer  of  appropriations  by  the  execu- 
tive take  place ;  that  is  to  say,  that  the  executive  be  not 
authorized  to  use  a  certain  appropriation,  if  not  wholly  spent, 
partially  for  purposes  for  which  another  appropriated  sum  has 
proved  to  be  insufficient.  It  is  not  only  necessary  for  vigorous 
civil  liberty  that  the  legislature,  and  chiefly  the  popular  branch 
of  it,  keep  the  purse-strings  of  the  public  treasury ;  but  also 
that  the  same  principle  be  acted  upon  in  all  minor  circles  of 
the  vast  public  fabric.  The  money  of  the  people  must  be 
under  the  control  of  the  trustees  of  the  people,  and  not  at  the 
disposal  of  officials  unconnected  with  the  people,  or  at  the  dis- 
posal of  an  irresponsible  multitude,  which,  itself  without  prop- 
erty, readily  countenances  those  mal-appropriations  of  money 
which  we  meet  with  in  every  democratic  absolutism,  from  the 
later  times  of  Athens  to  the  worst-governed  large  cities  of  our 
own  country.' 

The  French  imperial  constitution  decrees,  indeed,  that  the 
budgets  of  the  different  ministers  must  be  voted  by  the  deputies, 
but  they  must  be  voted  each  as  a  whole ;  no  amendments  can 
be  made  either  in  the  sums  thus  voted  in  the  lump,  or  in  any- 
thing else  proposed  by  the  government,  the  government  alone 
having  the  initiative.  All  the  deputies  can  do  is  to  send  back  a 
bill  to  the  government,  with  remarks.  The  French  provision, 
therefore,  is  founded  on  a  principle  the  very  opposite  to  that 
which  we  consider  essential  regarding  money  appropriations. 

The  history  of  the  control  over  the  public  funds,  in  grant- 
ing, specifying,  and  spending  them,  may  well  be  said  to  be  a 
continuous   index    of  the    growth  of  English  liberty.     It   is 


'  [For  the  practice  of  short  and  specific  supplies  by  the  English  commons, 
begun  under  Charles  II.,  and  since  William  III.  an  essential  part  of  the  consti- 
tution, see  Hallam,  iii.  159,  160;  May,  i.  140.  The  last-cited  author  points  to 
the  want  of  suspicion  of  the  government  on  the  part  of  the  commons,  growing 
out  of  the  detailed  budgets.] 

10 


146  OiY  CIVIL  LIBERTY 

this  principle  which  has  essentially  aided  in  establishing  self- 
government  in  England ;  and  which  has  made  the  house  of 
commons  the  real  seat  of  the  national  government  as  we  now 
find  it.  Every  one  knows  that  the  "supplies"  are  the  means 
by  which  the  English  effect  in  a  regular  and  easy  way  that 
which  the  Roman  populus  occasionally  and  not  regularly 
effected  against  the  senate,  by  a  refusal  to  enlist  in  the  army 
when  war  was  at  the  gates  of  the  city.' 

The  history  of  the  British  civil  list,  or  the  personal  revenue 
granted  to  the  monarch  at  the  beginning  of  his  reign,  is  also 
instructive  in  regard  to  this  subject.  In  the  middle  ages  the 
monarch  was  the  chief  nobleman,  and  had,  like  every  other 
nobleman,  his  domains,  from  which  he  drew  his  revenue. 
Taxes  were  considered  extraordinary  gifts.  As  the  monarch, 
however,  wanted  more  money,  either  for  just  or  unjust  pur- 
poses, loans  were  made,  which  were  never  redeemed.  Mr. 
Francis  correctly  observes,  that  it  is  absurd  to  charge  William 
III.  with  having  created  a  public  debt,  as  Hume  and  so  many 
others  have  done.  William  III.,  on  the  contrar}',  was  the  first 
monarch  who  treated  loans  really  as  loans,  and  provided  either 
for  their  repayment  or  the  payment  of  interest.^ 

As  civil  liberty  advanced,  all  revenue  of  the  monarch,  m- 
dependent  of  the  people,  was  more  and  more  withdrawn  from 
him,  and  crown  domains  were  more  and  more  made  public 
domains,  until  we  see  George  III.  giving  up  all  extra-parlia- 
mentary revenue.  The  monarch  was  made  dependent  on  the 
civil  list  exclusively.3 
ifc 

'  Chatham,  when  minister  to  the  crown  in  1759,  and  while  Lord  Clive  was 
making  his  great  conquests  in  the  East,  said  that  neither  the  East  India  Company 
nor  the  crown  ought  to  have  that  immense  revenue.  If  the  latter  had  it,  it  would 
endanger  all  liberty.  Chatham's  Correspondence,  vol.  i.  In  the  year  1858, 
however,  the  government  of  the  East  Indies  was  taken  from  the  company  and 
given  to  the  crown.  It  would  seem  that  the  commons  felt  so  secure,  in  the 
middle  of  the  nineteenth  century,  that  they  did  not  fear  to  have  that  vast  Eastern 
empire  ruled  over,  theoretically,  by  the  monarch,  in  reality,  by  a  minister  respon- 
sible to  parliament. 

"  Francis,  Chronicles  and  Characters  of  the  Stock  Exchange. 

3  [For  the  history  of  the  Civil  List,  see  May,  i.  chap.  4.] 


AND  SELF-GOVERNMENT.  1 47 

20.  It  is  further  necessary  that  the  power  of  making  war 
essentially  reside  with  the  people,  and  not  with  the  executive. 
In  England,  it  is  true,  the  privilege  of  making  war  and  con- 
cluding peace  is  called  a  royal  prerogative,  but,  as  no  war  can 
be  carried  on  without  the  nervus  rerum  gerendarum,  it  is  the 
commons  who  decide  whether  the  war  shall  be  carried  on  or 
not.  They  can  grant  or  decline  the  authority  of  enlisting  men, 
and  the  money  to  support  them  and  to  provide  for  the  war. 
The  Constitution  of  the  United  States  decrees  that  congress 
shall  have  power  to  make  war,^  and  an  American  declaration 
of  war  must  be  passed  by  congress,  like  any  other  law.  A 
declaration  of  war  by  the  United  States  is  a  law. 

Where  the  executive  has  not  only  the  nominal  but  the  real 
power  of  declaring  war,  we  cannot  speak  of  civil  liberty  or  of 
self-government ;  for  that  which  most  essentially  affects  the 
people  in  all  their  relations  is  in  that  case  beyond  their 
control.  Even  with  the  best-contrived  safeguards,  and  a 
deeply  rooted  tradition,  it  seems  impossible  to  guard  against 
occasional  high-handed  assumption  of  power  by  the  execu- 
tive in  this  particular.  Whatever  our  late  Mexican  war 
ultimately  became  in  its  character,  there  is  probably  now  no 
person  who  will  deny  that,  in  its  beginning,  it  was  what  is 
called  a  cabinet  war.  It  was  commenced  by  the  cabinet, 
which,  after  hostilities  had  begun,  called  on  congress  to  ratify 
its  measures. 

It  has  already  been  stated  (paragraph  13)  that  a  perfect 
dependence  of  the  forces  upon  the  civil  power  is  an  indispen- 
sable requisite  and  element  of  civil  liberty. 

21.  The  supremacy  of  the  law  and  that  unstinted  protection 


'  It  may  as  well  be  observed  here  that  congress  means  the  senate  and  house 
of  representatives.  The  president  is  not  included  in  the  term.  Parliament,  on 
the  other  hand,  means  commons,  lords,  and  king.  Practically  speaking,  the 
difference  is  not  great ;  for  the  president  has  the  veto  power,  of  which  he  makes 
occasional  use,  while  the  King  of  England  has  not  made  any  use  of  it  for  about 
a  century.  The  English  administration  would  resign  before  it  would  become 
necessary  in  their  eyes  to  veto  a  bill.  But  the  King  of  England  has  the 
greatest  of  all  veto  powers — he  can  dissolve  parliament,  which  our  executive 
cannot  do. 


1^8  ON  CIVIL   LIBERTY 

of  the  individual  as  well  as  of  society,  in  which  civil  liberty 
essentially  consists,  require  on  the  one  hand  the  fullest  pos- 
sible protection  of  the  minority,  and,  on  the  other  hand,  the 
security  of  the  majority  that  no  factious  minority  or  cabal  shall 
rule  over  it. 

The  protection  of  the  minority  leads  to  that  great  institu- 
tion, as  it  has  been  boldly  but  not  inappropriately  called — the 
opposition.  A  well-organized  and  fully  protected  opposition, 
in  and  out  of  the  legislature — a  loyal  opposition,  by  which  is 
meant  a  party  which  opposes,  on  principle,  the  administration, 
or  the  set  of  men  who  have,  for  the  time  being,  the  govern- 
ment in  their  hands,  but  does  so  under  and  within  the  common 
fundamental  law — is  so  important  an  element  of  civil  liberty, 
whether  considered  as  a  protecting  fence  or  as  a  creative 
power,  that  it  would  be  impossible  here  to  give  to  the  subject 
that  space  which  its  full  treatment  would  require,  I  have 
attempted  to  do  so,  and  to  sketch  its  history,  in  my  Political 
Ethics.     [Book  v.  chap.  3.] 

The  elaboration  of  that  which  we  call  an  opposition,  is  an 
honor  which  belongs  to  the  English,  and  seems  to  me  as  great 
and  as  noble  a  contribution  to  the  treasures  of  civil  freedom 
as  the  development  of  the  power  of  our  supreme  courts  (of 
the  United  States  and  of  the  different  states)  to  declare,  upon 
trial  of  specific  cases,  a  law  passed  by  the  legislature  uncon- 
stitutional and  void.  They  are  two  of  the  noblest  acquisitions 
in  the  cause  of  liberty,  order,  and  civilization. 

22.  The  majority,  and  through  it  the  people  at  large,  are 
protected  by  the  principle  that  the  administration  is  founded 
upon  party  principles,  or,  as  it  has  been  called,  upon  a  govern- 
ment by  party,  if  by  party  we  mean  men  who  agree  on  cer- 
tain "  leading  general  principles  in  government" '  in  opposi- 
tion to  others,  and  act  in  unison  accordingly.  If  by  party  be 
understood  a  despicable  union  of  men,  to  turn  out  a  certain 
set  of  office-holders  merely  to  obtain  the  lucrative  places,  and, 
when  they  are  obtained,  a  union  to  keep  them,  it  becomes  an 


Burke. 


AXn  SELF-GOVERNMENT.  1 49 

odious  faction  of  placemen  or  office-hunters,  the  last  of  those 
citizens  to  whom  the  government  ought  to  be  entrusted.  The 
ruinous  and  rapidly  degrading  effect  of  such  a  state  of  things 
is  directly  contrary  to  sound  liberty,  and  serves  as  a  fearful 
encouragement  to  those  who,  politically  speaking,  are  the  most 
worthless.  But  freedom  of  thought  and  action  produces  con- 
tention in  all  spheres,  and,  where  great  tasks  are  to  be  per- 
formed and  where  weighty  interests  are  at  stake,  those  who 
agree  on  the  most  important  principles  will  unite  and  must  do 
so  in  order  to  be  sufficiently  strong  to  do  their  work.  With- 
out party  administration  and  party  action,  it  is  impossible  that 
the  majority  should  rule,  or  that  a  vigorous  opposition  can  rise 
to  a  majority  and  rule  in  turn.  Liberty  requires  a  parliament- 
ary government,  and  no  truly  parliamentary  government  can 
be  conceived  of  without  the  principle  of  party  administration. 
It  became  fully  developed  under  George  I.,  or  we  should 
rather  say  under  Sir  Robert  Walpole.  Under  the  previous 
governments  mixed  cabinets  of  whigs  and  tories  were  common, 
when  court  intrigues  and  individual  royal  likings  and  dislikes 
had  necessarily  often  a  greater  effect  than  national  views  and 
interests,  to  which  it  is  the  object  of  party  administration  to 
give  the  sway.  We  have  to  deal  with  parties,  in  this  place, 
only  as  connected  with  civil  liberty. 

For  their  dangers,  their  affinity  to  faction  as  well  as  their 
existence  in  the  arts,  sciences,  religion,  and  even  in  trades — in 
fact,  wherever  free  action  is  allowed  ;  for  the  public  inconveni- 
ence, and  indeed  danger,  in  having  more  than  two  parties ;  the 
necessity  that  political  parties  should  be  founded  upon  broad, 
comprehensive,  and  political  principles ;  for  the  galling  inso- 
lence to  which  parties  in  power  frequently  rise,  even  in  coun- 
tries like  ours  ;  and  for  the  fact  that,  in  England  at  least,  there 
is  a  manifest  disposition  to  treat  measures  and  politics  in  gen- 
eral, as  far  as  possible,  without  reference  to  mere  party  politics  ; 
as  well  as  for  many  other  important  matters  connected  with 
the  subject  of  parties,  I  must  refer  to  other  places.' 


»  These  subjects  have  been  considered  at  length  in  the  Political  Ethics.     Th* 


ISO 


ON  CIVIL  LIBERTY 


23.  A  principle  and  guarantee  of  liberty,  so  acknowledged 
and  common  with  the  Anglican  people  that  few  think  of  its 
magnitude,  yet  of  really  organic  and  fundamental  importance, 
is  the  division  of  government  into  three  distinct  functions,  or 
rather  the  keeping  of  these  functions  clearly  apart. 

It  is,  as  has  been  mentioned,  one  of  the  greatest  political 
blessings  of  England,  that  from  a  very  early  period  her  courts 
of  justice  were  not  occupied  with  "  administrative  business," 
for  instance,  the  collection  of  taxes,  and  that  her  parliament 
became  the  exclusive  legislature,  while  the  parliaments  of 
France  united  a  judicial,  legislative,  and  administrative  char- 
acter. The  union  of  these  functions  is  absolutism,  or  despotism 
on  the  one  hand,  and  slavery  on  the  other,  no  matter  in  whom 
they  are  united,  whether  in  one  despot  or  in  many,  or  in  the 
multitude,  as  in  Athens  after  the  time  of  Cleon  the  tanner. 
The  English  political  philosophers  have  pointed  out  long  ago^ 
the  necessity  of  keeping  the  three  powers  separate  in  a  "  con- 
stitutional" government.  Those,  however,  who  have  no  other 
definition  of  liberty  than  that  it  is  equality,  discard  this 
division,  except,  indeed,  so  far  as  the  mere  convenience  of 
transacting  business  would  require. 

We  have  seen  already  that  a  distinguished  French  publicist, 
Mr.  Girardin,  declares  himself  for  an  undivided  public  power.^ 


reader  will  peruse  with  advantage  the  chapter  on  Party  in  Lord  John  Russell's 
Essay  on  the  History  of  the  English  Government  and  Constitution,  2d  edit., 
London,  1823. 

'  For  instance,  Locke.  Montesquieu,  at  a  later  period,  is  generally  considered 
the  political  philosopher  who  first  distinctly  conceived  the  necessity  of  the  divi- 
sion of  power.  The  English  practised  it  earliest  and  established  it  most  clearly ; 
and  the  French  have  again  given  it  up,  for  a  time  at  least,  ever  since  the  revolu- 
tion of  1848,  nor  has  it  ever  been  properly  carried  out  by  them,  their  principle 
of  centralization  preventing  it.     See  Pol.  Ethics,  book  ii.  c.  xxiii. 

*  He  has  repeatedly  given  his  views,  but  especially  in  an  elaborate  and  bril- 
liantly written,  but,  according  to  our  opinion,  superficial  paper  on  the  question, 
why  the  republic  (of  1848)  came  to  a  fall.  Mr.  Girardin  and  all  the  French  who 
believe  that  liberty  exists  in  the  right  of  choosing  the  ruler,  although  once  elected 
he  be  absolute,  seem  entirely  to  forget  that  all  the  generals  of  the  monastic  orders 
are  elective  ;  that  in  many  orders,  even  in  those  of  nuns,  for  instance  in  the 
Ursuline  order,  the  superiors  are  elected  by  universal  suffrage,  but  that  no  person 


AND  SELF-GOVERNMENT. 


151 


Unite  d?'  pouvoir  is  the  watchword  of  the  French  republicans, 
and  it  is  the  very  principle  with  which  Louis  Napoleon  check- 
mated them.  It  belongs  to  what  may  well  be  called  Rousseau- 
ism.  Rousseau  is  distinctly  against  division  of  power.'  His 
Social  Contract  became  the  political  Bible  of  the  convention- 
men,  and  it  has  ever  since  kept  a  firm  hold  on  the  mind  of  a 
very  large  part  of  the  French  people,  probably  of  the  largest 
portion.  Indeed,  we  may  say  that  the  two  great  types  of 
government  now  existing  among  the  civilized  and  striving  por- 
tion of  mankind  are  representative  (or,  as  the  French  choose 
to  call  it,  parliamentary)  government,  which  is  essentially  of 
a  co-operative  character — it  is  the  government  of  Anglican 
liberty ;  and  unity  of  power,  the  Galilean  type.  The  French 
people  themselves  are  divided  according  to  these  two  types. 
Mr.  Guizot  may  perhaps  be  considered  as  the  French  repre- 
sentative of  the  first  type.  A  pamphlet,  on  the  other  hand, 
on  government,  and  generally  ascribed  to  Louis  Napoleon, 
published  not  long  before  the  explosion  of  the  republic,  for 
which  it  was  evidently  intended  to  prepare  the  public  mind, 
advocates  the  unity  of  power  in  the  last  extreme,  and  as  a 
truly  French  principle. 

It  may  be  granted  that  when  French  publicists  and  his- 
torians speak  with  undisguised  praise  of  the  introduction  of 
centralization  and  unity  of  power  as  one  of  the  greatest 
blessings,  they  may  at  times  mean  an  organized  and  uniform 
government,  as  opposed  to  merely  specific  protection  in  an- 
tiquity and  the  middle  ages,  where  tribunes,  jurats,  and  other 
officers  were  appointed  to  protect  certain  interests  or  classes, 
somewhat  like  foreign  ministers  or  consuls  of  the  portions  of 
society,  in  times  of  peace — it  is  possible  that  they  occasionally 
mean  something  of  this  sort,  without  being  quite  conscious  of 


has  ever  claimed  the  possession  of  liberty  for  the  monks  or  nuns.  Indeed,  their 
very  vow  is  against  it.  But  "republicanism"  has  actually  been  vindicated  for 
the  monastic  orders.  In  the  same  way  Rome  might  be  considered  a  republic 
because  the  pope  is  elective. 

'  [Centralization  is  opposed  (i)  to  division  of  power  betvi'een  functions,  (2)  to 
diffusion  of  power,  Dr  local  self-government,  which  is  treated  of  aftei^wards.] 


152 


ON  CIVIL  LIBERTY 


the  difference ;  but,  as  matters  stand,  we  who  love  AngHcan 
liberty  believe  that  what  is  now  and  emphatically  called  unity 
of  power  is  unvarnished  absolutism.  It  is  indifferent  who 
wields  it.  We  insist  upon  the  supremacy,  not  the  absolutism, 
of  the  legislature.  We  require  the  harmonious  union  of  the 
co-operative  whole,  but  abhor  the  unity  of  power. 

What  the  French  republicans  demand  in  the  name  of  the  de- 
mocracy, kings  insist  upon  in  the  name  of  divine  right.  Both 
loudly  protest  against  the  "  division  of  sovereignty,"  which 
can  only  mean  a  clear  division  of  power;  for  what  in  a  philo- 
sophical sense  can  truly  be  called  sovereignty  can  never  be 
divided,  and  its  division  need  not,  therefore,  be  guarded 
against.  Sovereignty  is  the  self-sufficient  source  of  all  power 
from  which  all  specific  powers  are  derived.  It  can  dwell, 
therefore,  according  to  the  views  of  freemen,  with  society,  the 
nation  only;  but  sovereignty  is  not  absolutism.  It  is  remark- 
able how  all  absolutists,  monarchical  or  democratic,  agree  on 
the  unity  of  power.' 

Power,  according  to  its  inherent  nature,  goes  on  increasing 
until  checked.  The  reason  is  not  that  power  is  necessarily 
of  an  evil  tendency,  but  because  without  it,  it  would  not  be 
power."^  Montesquieu  says :  "  It  is  a  lasting  experience  that 
every  man  who  has  power  is  brought  to  the  abuse  of  it.  He 
goes  on  until  he  finds  its  limits." 3     And  it  is  so  with  "every 


'  Innumerable  official  instances  might  be  cited.  The  King  of  Prussia,  when,  in 
May,  1847,  he  delivered  his  first  throne  speech  to  the  united  committees  of  the 
provincial  estates,  which  were  to  serve  as  a  substitute  for  the  expected  estates 
general,  "appealed  in  advance  to  his  people"  against  everything  we  are  accus- 
tomed to  call  constitutional.  "  My  people  does  not  want  a  participation  of  repre- 
sentatives in  ruling,  .  .  .  nor  the  division  of  sovereignty,  nor  the  breaking  up 
of  the  plenitude  of  royal  power,"  etc.  General  Bonaparte  wrote  to  the  Direc- 
tory, May  14,  1796  :  "  One  bad  general  is  even  better  than  two  good  ones.  War 
is  like  government,  it  is  a  matter  of  tact" — words  which  Mr.  Girardin  quotes  with 
approval,  and  as  an  authority  for  his  theory  of  the  best  government  consisting  in 
a  succession  of  perfectly  absolute  single  rulers  to  be  appointed,  and  at  pleasure 
recalled  by  universal  suffrage. 

"  This  I  have  endeavored  plainly  to  show  in  the  Political  Ethics. 

3  Esprit  des  Loix,  xi.  5. 


AXD  SELF-GOVERNMENT. 


153 


man,"  because  it  lies  in  the  very  nature  of  power  itself.  The 
reader  is  invited  to  reperuse  "The  Federahst"  on  this  weighty- 
subject.' 

The  unity  of  power  doubtless  dazzles,  and  thus  is  the  more 
dangerous.  The  French  ought  to  listen  to  their  own  great 
countr)'man.  He  says:  "A  despotic  government  (and  all  unity 
of  power  is  despotic)  strikes  the  eye,  (saute  pour  ainsi  dire  aux 
yeux;)  it  is  uniform  throughout:  as  it  requires  nothing  but 
passions  to  establish  it,  all  sorts  of  people  are  sufficiently  good 
for  it."^ 

Our  own  Webster,  in  his  speech  on  the  presidential  protest, 
delivered  the  following  admirable  passage  on  the  subject  of 
which  we  treat,  and  on  liberty  in  general — a  passage  which  I 
give  entire,  in  spite  of  its  length,  because  I  cannot  find  the 
courage  to  mutilate  it.  I  have  tried  to  select  some  sentences, 
but  it  seemed  to  me  like  attempting  to  break  off  some  limbs 
of  a  master-work  of  sculpture  which  has  happily  come  down 
to  us  entire. 3 

Mr.  Webster  said:  "The  first  object  of  a  free  people  is  the 
preservation  of  their  liberty,  and  liberty  is  only  to  be  pre- 
served by  maintaining  constitutional  restraints  and  just  divi- 
sions of  political  power.     Nothing  is  more  deceptive  or  more 


*  Mr.  Madison's  paper  on  The  Meaning  of  the  Maxim,  which  requires  a  Sepa- 
ration of  the  Departments  of  Power,  examined  and  ascertained.  Federalist,  No. 
xlvii.  and  sequ. 

=  Esprit  des  Loix,  book  v.  c.  14. 

3  The  speech  was  delivered  in  the  Senate  of  the  United  States  on  the  7th  of 
May,  1834.  If  I  might  place  myself  by  the  side  of  these  men,  I  would  refer  the 
reader  to  the  Political  Ethics,  where  I  stated  that  despotism  is  simple  and  coarse. 
It  is  like  a  block  of  granite,  and  may  last  in  its  unchanging  coarseness  a  long 
time ;  but  liberty  is  organic,  with  all  the  delicate  vitality  of  organic  bodies,  with 
development,  growth,  and  expansion.  Despotism  may  have  accretion,  but  liberty 
widens  by  its  own  vital  power,  and  gains  in  intensity  as  it  expands.  The  long 
duration  of  some  despotisms  decides  nothing.  Longevity  of  states  is  indeed  a 
requisite  of  modern  civilization,  but  if  we  must  choose,  who  would  not  prefer  a 
few  hundred  years  of  Roman  liberty  to  the  thousands  of  Chinese  dreary  manda- 
rinism  and  despotism  ?  Besides,  we  must  not  forget  that  a  shoe  once  trodden 
down  to  a  slipper  will  always  serve  longer  in  its  slipshod  capacity  than  it  did  as 
a  ijioe. 


154 


ON  CIVIL  LIBERTY 


dangerous  than  the  pretence  of  a  desire  to  simphfy  govern- 
ment. 

"The  simplest  governments  are  despotisms;  the  next  sim- 
plest, limited  monarchies;  but  all  republics,  all  governments  of 
law,  must  impose  numerous  limitations  and  qualifications  of 
authority,  and  give  many  positive  and  many  qualified  rights. 
In  other  words,  they  must  be  subject  to  rule  and  regulation. 
This  is  the  very  essence  of  free  political  institutions. 

"The  spirit  of  liberty  is,  indeed,  a  bold  and  fearless  spirit; 
but  it  is  also  a  sharp-sighted  spirit ;  it  is  a  cautious,  saga- 
cious, discriminating,  far-seeing  intelligence;  it  is  jealous  of 
encroachment,  jealous  of  power,  jealous  of  man.  It  demands 
checks  ;  it  seeks  for  guards  ;  it  insists  on  securities  ;  it  en- 
trenches itself  behind  strong  defences,  and  fortifies  itself  with 
all  possible  care  against  the  assaults  of  ambition  and  passion. 
It  does  not  trust  the  amiable  weaknesses  of  human  nature,  and 
therefore  it  will  not  permit  power  to  overstep  its  prescribed 
limits,  though  benevolence,  good  intent,  and  patriotic  purpose 
come  along  with  it.  Neither  does  it  satisfy  itself  with  flashy 
and  temporary  resistance  to  its  legal  authority.  Far  other- 
wise. It  seeks  for  duration  and  permanence.  It  looks  before 
and  after ;  and,  building  on  the  experience  of  ages  which  are 
past,  it  labors  diligently  for  the  benefit  of  ages  to  come. 
This  is  the  nature  of  constitutional  liberty ;  and  this  is  our 
liberty,  if  we  will  rightly  understand  and  preserve  it.  Every 
free  government  is  necessarily  complicated,  because  all  such 
governments  establish  restraints,  as  well  on  the  power  of 
government  itself  as  on  that  of  individuals.  If  we  will 
abolish  the  distinction  of  branches,  and  have  but  one  branch ; 
if  we  will  abolish  jury  trials,  and  leave  all  to  the  judge;  if  we 
will  then  ordain  that  the  legislator  shall  himself  be  that  judge; 
and  if  we  place  the  executive  power  in  the  same  hands,  we 
may  readily  simplify  government.  We  may  easily  bring  it  to 
the  simplest  of  all  possible  forms,  a  pure  despotism.  But  a 
separation  of  departments,  so  far  as  practicable,  and  the  pres- 
ervation of  clear  lines  of  division  between  them,  is  the  funda- 
mental  idea   in    the    creation  of  all   our  constitutions ;    and, 


AND   SELF-GO  VERA  MENT.  155 

doubtless,  the  continuance   of  regulated  liberty  depends  on 
maintaining  these  boundaries." ' 

Unity  of  power,  if  sought  for  in  wide-spread  democracy, 
must  always  lead  to  monarchical  absolutism.  Virtually  it  is 
such ;  for  it  is  indifferent  what  the  appearance  or  name  may 
be,  the  democracy  is  not  a  unit  in  reality ;  yet  actual  absolut- 
ism existing,  it  must  be  wielded  by  one  man.  All  absolutism 
is  therefore  essentially  a  one-man  government.  The  ruler  may 
not  immediately  take  the  crown ;  the  pear  may  not  yet  be 
ripe,  as  Napoleon  said  to  Sieyes ;  but  it  soon  ripens,  and  then 
the  avowed  absolute  ruler  has  far  more  power  than  the  king 
whose  absolute  power  is  traditional,  because  the  tradition  itself 
brings  along  with  it  some  limitations  by  popular  opinion.  Of 
all  absolute  monarchs,  however,  it  is  true  that  "  it  is  the  vice 
of  a  pure  (absolute)  monarchy  to  raise  the  power  so  high  and 
to  surround  it  with  so  much  grandeur  that  the  head  is  turned 
of  him  who  possesses  it,  and  that  those  who  are  beneath  him 
scarcely  dare  to  look  at  him.  The  sovereign  believes  himself 
a  god,  the  people  fall  into  idolatry.  People  may  then  write  on 
the  duties  of  kings  and  the  rights  of  subjects ;  they  may  even 
constantly  preach  upon  them,  but  the  situations  have  greater 
power  than  the  words,  and  when  the  inequality  is  immense,  the 
one  easily  forgets  his  duties,  the  others  their  rights."^  Change 


»  Page  122,  vol.  iv.  of  the  Works  of  Daniel  Webster.  I  have  not  transcribed 
this  long  passage  without  the  permission  of  those  who  have  the  right  to  give  it. 

To  my  mind  it  appears  the  most  Demosthenian  passage  of  that  orator.  Per- 
haps I  am  liiased,  because  the  extract  maintains  what  I  have  always  asserted  on 
the  nature  of  liberty,  and  what  has  shown  itself  with  such  remarkable  clear- 
ness and  undraped  nakedness  in  the  late  French  affairs. 

»  Guizot,  Essais  sur  I'Histoire  de  France,  p.  359. 

General  Rapp,  first  aid  of  Napoleon,  gives  a  good  picture  of  the  false  position 
of  an  absolute  monarch,  in  his  Memoirs,  Paris,  1832,  ch.  2.  He  says  that 
"whenever  Napoleon  was  angry,  his  confidants,  far  from  appeasing  him,  in- 
creased his  anger  by  their  representations.  'Your  majesty  is  right,'  they  would 
say :  '  such  a  person  has  merited  to  be  shot,  or  disgraced,  or  discarded.  ...  I 
have  long  known  him  to  be  your  enemy.  Examples  are  necessary;  they  are 
necessary  for  the  maintenance  of  tranquillity.'  When  it  was  required  to  levy 
contributions  from  the  enemy's  country  and  Napoleon  would  perhaps  ask  for 
twenty  thousand,  he  was  advised  to  demand  ten  more.     If  it  was  the  question  to 


I50 


ON  CIVIL  LIBERTY 


the  terms,  and  nearly  every  word  applies  to  absolute  democra- 
cies with  equal  truth.  Aristotle  says  that  extreme  democracy 
(what  we  would  call  democratic  absolutism)  has  the  character 
of  the  tyrannis  (monarchical  absolutism.)^  This  is  true,  yet 
we  must  add  these  modifications  :  The  power  of  the  absolute 
monarch,  though  centred  in  one  man,  according  to  theory  is 
lent  to  him  by  those  over  whom  he  rules ;  he  may  be  brought 
to  an  account ;  but  the  power  of  an  absolute  democracy  is  fear- 
ful reality,  with  which  there  is  no  reckoning.  It  strikes,  and 
the  strikers  vanish.  Where  shall  they  be  impeached  ?  Even 
he  who  led  them  is  shielded  by  the  inorganic  multitude  that 
followed  him.  It  is  felt  to  be  heroic  to  oppose  the  absolute 
monarch  ;  it  is  considered  unpatriotic  or.treasonable  to  oppose 
the  absolute  democracy,  or  those  people  who  call  themselves 
the  people. 

Absolute  monarchs,  indeed,  often  allow  free  words.  The 
philosopher  Kant  uttered  remarkable  political  sentiments  under 
Frederic  the  Great,  and  Montesquieu  published  his  Spirit  of 
Laws  under  the  auspices  of  Madame  de  Tencin,  the  chanoiness 
mistress  of  the  Duke  of  Orleans,  regent  of  France,  and  succes- 
sively mistress  of  many  others.     Montesquieu  was  favored  by 


levy  two  hundred  thousand  men,  he  was  persuaded  to  ask  for  three  hundred 
thousand ;  in  liquidating  a  debt  which  was  indisputable,  they  would  insinuate 
doubts  on  its  legitimacy,  and  would  often  cause  him  to  reduce  to  a  half,  or  a 
third,  and  sometimes  entirely,  the  amount  of  the  demand.  If  he  spoke  of  making 
war,  they  would  applaud  the  noble  resolution  :  war  alone  would  enrich  France; 
it  was  necessary  to  astonish  the  world  in  a  manner  suitable  to  the  power  of  the 
great  nation.  Thus  it  was  that  in  provoking  and  encouraging  expectations  and 
uncertain  enterprises  he  was  precipitated  into  continual  wars.  Thus  it  is  that 
they  succeeded  in  giving  to  his  reign  a  character  of  violence  which  did  not  belong 
to  him.  His  disposition  and  habits  were  altogether  good-natured.  Never  a  man 
was  more  inclined  to  indulgence  and  more  awake  to  the  voice  of  humanity.  I 
could  cite  thousands  of  examples." 

Whether  Napoleon  was  good-natured  or  not  need  not  be  discussed  here,  nor 
is  it  important  to  state  that  he  was  not  so  weak  as  represented  by  Rapp;  but  it  is 
instructive  to  see  how  a  man  like  Rapp,  an  uncompromising  absolutist,  unawares 
lays  bare  his  own  opinion  of  the  character  of  an  absolute  monarch,  because  he 
is  absolute. 

»  Pol.,  v.  9,  §  6;  vi.  2,  §§  9,  12. 


AND  SELF-GOVERNMENT.  1 57 

these  persons  ;  for  nothing  is  more  common  than  that  sprightly 
people  have  a  sentimental  love  for  the  theory  of  liberty.  But 
neither  Kant  nor  Montesquieu  would  have  been  suffered  to 
utter  his  sentiments  had  there  been  any  fear  whatever  that 
they  might  pass  into  reality.  There  is  an  immense  difference 
between  admiring  liberty  as  a  philosophical  speculation,  lov- 
ing her  like  an  imaginary  beauty  by  sonnet  and  madrigal, 
and  uniting  with  her  in  real  wedlock  for  better  and  for  worse. 
Liberty  is  the  loved  wife  and  honored  companion,  through 
this  earthl)'  life,  of  every  true  American  and  Englishman,  and 
no  mistress  for  sentimental  sport  or  the  gratification  of  spas- 
modic passion,  nor  is  she  for  them  a  misty  nymph  with  whom 
a  mortal  falls  in  consuming  love,  nor  is  she  the  antiquated 
portrait  of  an  ancestor,  looked  upon  with  respect,  perhaps  even 
with  factitious  rev^erence,  but  without  life-imparting  actuality.' 


'  Since  the  foregoing  chapter  was  originally  written,  history  has  furnished  us 
with  many  additional  and  impressive  illustrations  of  some  of  its  contents. 
Numerous  French  writers,  anxious  to  vindicate  for  France  the  leadership  in  the 
race  of  civilization,  yet  sadly  aware  that  liberty  exists  no  more  in  France,  have 
declared  that  the  essence  of  liberty  exists  simply  in  universal  suffrage,  or,  if  they 
abandon  even  the  name  of  liberty,  that  the  height  of  political  civilization  con- 
sists in  two  things — universal  suffrage  and  the  code  Napoleon,  with  the  proclama- 
tion of  which  it  has  been  stoutly  maintained  a  French  army  would  find  the 
conquest  of  England  and  the  regeneration  of  Italy  an  easy  matter.  Once  the 
principle  of  universal  suffrage  established,  the  French  statesmen  of  the  imperial 
school  demand  that  everj'thing  flowing  from  it,  by  what  they  term  severe  or 
uncompromising  logic,  must  be  accepted.  This  peculiar  demand  of  severe  logic 
is,  nevertheless,  wholly  illogical,  for  politics  are  a  means  to  obtain  a  high  object, 
and  the  application  to  certain  given  circumstances  is  of  paramount  importance. 
We  do  not  build  houses,  cure  or  sustain  our  bodies,  by  logic ;  and  a  bill  of  rights 
is  infinitely  more  important  and  intrinsically  true  than  the  most  symmetrically 
logical  rights  of  men.  The  "severe  logic"  leads,  moreover,  different  men  to 
entirely  different  results,  as,  for  instance,  Mr.  Louis  Blanc  on  the  one  hand,  and 
the  imperial  absolutists  on  the  other;  and,  if  universal  suffrage,  without  guaran- 
teeing institutions,  is  the  only  principle  of  importance,  the  question  presents  itself 
immediately.  Why  appeal  to  it  on  rare  occasions  only,  perhaps  only  once  in  order 
to  transfer  power,  and  what  does  universal  suffrage  mean  if  not  the  ascertaining 
of  the  opinion  of  the  majority?  If  this  be  the  object,  then  we  must  further  ask, 
Wliy  is  discussion  necessary  to  form  the  opinion  suppressed,  and  how  could  Mr. 
de  Montalembert  be  charged  with,  and  tried  for,  having  attacked  the  principle  of 


158  ON  CIVIL  LIBERTY 

universal  suffrage,  in  a  pamphlet  the  whole  object  of  which  could  not  be  any- 
thing else  than  influencing  those  who,  under  universal  suffrage,  have  to  give 
their  votes?    This  is  not  "  severe  logic." 

If  much  has  happened  and  been  written  since  the  original  penning  of  this 
chapter  to  illustrate  the  utter  falsity  of  universal  suffrage,  naked  and  pure,  we 
must  not  omit  to  mention,  on  the  other  hand,  works  of  merit  which  have  been 
written  in  a  very  opposite  train  of  thought,  by  men  of  great  mark,  of  whom 
Mr.  de  Tocqueville  deserves  particular  mention  on  account  of  his  Ancien 
Regime. 


\ 


AND  SELF-GOVERNMENT.  159 


CHAPTER    XV. 

RESPONSIBLE    MINISTERS. COURTS    DECLARING    LAWS    UNCONSTI- 
TUTIONAL.  REPRESENTATIVE    GOVERNMENT. 

24.  It  is  not  only  necessary  that  every  officer  remain  indi- 
vijdually  answerable  for  his  acts,  but  it  is  equally  important  that 
no  act  be  done  for  which  some  one  is  not  responsible.  This 
applies  in  particular,  so  far  as  liberty  is  to  be  protected,  to  that 
branch  of  government  which  directs  the  military.  It  is  impor- 
tant, therefore,  that  no  decree  of  government  go  forth  without 
the  name  of  a  responsible  person;  and  that  the  officers,  or  single 
acts  of  theirs,  shall  be  tried,  when  trial  becomes  necessary,  by 
regular  action  at  law,  or  by  impeachment;  and  that  no  positive 
order  by  the  supreme  executive,  even  though  this  be  a  king,  as 
in  England,  be  allowed  as  a  plea  for  impunity.  A  long  time 
elapsed  before  this  principle  came  clearly  to  be  established  in 
England.  Charles  I.  reproved  the  commons  for  proffering  their 
loyalty  to  his  own  person,  while  they  opposed  his  ministers,  and 
measures  which  he  had  personally  ordered.  England  in  this,  as 
in  almost  all  else  that  relates  to  constitutional  liberty,  had  the 
start  of  the  continent  by  two  hundred  years  and  more.'     The 


•  [The  importance  of  the  power  of  impeachment  for  obeying  a  king's  unlawful 
commands  would  have  been  practically  destroyed  in  England,  if  either  a  pardon 
had  been  pleadable  against  impeachment,  or  the  dissolution  of  a  house  of 
commons  had  put  an  end  to  proceedings  in  such  sort  that  a  new  house  must 
commence  them  de  novo.  The  earl  of  Danby  had  been  saved  for  the  time  by 
Charles  II.,  by  means  of  a  dissolution  of  the  impeaching  parliament,  and  when  a 
new  parliament  revived  the  proceedings,  pleaded  a  pardon  in  bar  of  the  prose- 
cution of  the  case.  (1679.)  It  was  decided  in  the  act  of  settlement  of  13  Wm.  III. 
that  "  no  pardon  under  the  great  seal  of  England  be  pleadable  to  an  impeach- 
ment of  the  commons  in  parliament."  The  question  whether  an  impeachment 
could  survive  a  dissolution  was  decided,  during  the  impeachment  of  Warren 
Hastings,  by  very  large  majorities  of  both  houses   in  the  affirmative.     (1791.) 


1 60  ON  CIVIL  LIBERTY 

same  complaints  were  heard  on  the  continent  of  Europe  when 
lately  attempts  were  made  to  establish  liberty  in  monarchies  ; 
and  more  will  be  heard  when  the  time  of  new  attempts  shall 
have  arrived.  Responsible  ministers,  and  a  cabinet  dependent 
upon  a  parliamentary  majority,  were  the  objects  of  peculiar 
distaste  to  the  present  emperor  of  the  French,  as  they  have 
been  to  all  absolute  monarchs.  His  own  proclamations  dis- 
tinctly express  it,  and  his  newspapers  continue  to  decry  the 
servile  position  of  government  when  ministers  are  "  in  the  ser- 
vice of  a  house  of  representatives," '  which  means  dependent 
on  a  parliamentary  majority. 

In  unfree  countries,  the  principle  prevails  that  complaints 
against  the  act  of  an  officer,  relating  to  his  public  duty,  must 
be  laid  before  his  own  superiors.  An  overcharge  of  duty  on 
imported  goods  cannot  there  be  tried  before  a  common  court, 
as  is  the  case  with  us. 

25.  As  a  general   rule,  it  may  be  said  that  the  principle 


After  sentence  on  trial  by  impeachment,  the  king  can  pardon  ;  and,  in  fact,  the 
house  of  lords,  in  1715,  when  six  peers,  involved  in  the  rebellion  of  that  year, 
had  been  by  this  process  convicted,  begged  the  king  to  exercise  this  prerogative, 
which  he  did  by  pardoning  three  of  the  number.  Hallam,  ii.  555-570.  Thus  a 
king  can  save  his  minister  from  the  results  of  a  legal  sentence  by  impeachment, 
but  not  until  he  stands  convicted  before  the  country,  and  suffers,  it  may  be,  a 
lifelong  loss  of  reputation.] 

'  Tt  is  sufficiently  remarkable  to  be  mentioned  here,  that  Napoleon  III.,  when 
the  sanguinary  coup  d'etat  had  been  perpetrated,  supported  his  demand  of  a 
cabinet  exclusively  dependent  upon  the  chief  of  the  state,  by  the  example  of  the 
American  president,  not  seeing  or  not  mentioning  that  congress  has  a  controlling 
power. 

The  following  extract  of  a  letter,  written  by  Lord  Liverpool  to  Lord  Castle- 
reagh,  (October  23,  1818,)  and  taken  from  Correspondence,  Despatches,  and 
other  Papers  of  Viscount  Castlereagh,  second  Marquis  of  Londonderry,  I2  vols., 
London,  1853,  is  interesting,  if  we  consider  how  thorough  a  tory  minister  Lord 
Liverpool  was : 

"  Bathurst's  despatch  and  letter  of  Tuesday,  and  my  letter  of  to-day,  will  put 
you  entirely  in  possession  of  our  sentiments  upon  the  present  state  of  the  nego- 
tiations. The  Russians  must  be  made  to  feel  that  we  have  a  parliament  and  a 
public  to  which  we  are  responsible,  and  that  we  cannot  permit  ourselves  to  be 
drawn  into  views  of  policy  which  are  wholly  incompatible  with  the  spirit  of  our 
government. 

"  Ever  sincerely  yours,  Liverpool." 


AND  SELF-GOVERNMENT.  l6l 

prevails  in  Anglican  liberty,  that  the  executive  maj^  do  that 
which  is  positively  allowed  either  by  the  fundamental  or  other 
law,  and  not  all  that  which  is  not  prohibited.  The  royal  pre- 
rogatives of  the  English  crown  doubtless  made  the  evolution 
of  this  principle  difficult,  and  may  occasionally  make  clear 
action  upon  it  still  so ;  but  the  modern  development  of  liberty 
has  unquestionably  tended  more  and  more  distinctly  to  estab- 
lish the  principle  that  for  everything  the  executive  does  there 
must  be  the  Vv^arrant  of  the  law.  The  principle  is  of  high  im- 
portance, and  it  needs  hardly  to  be  added  that  it  forms  one  of 
the  prominent  elements  of  American  liberty.  Our  presidents, 
indeed,  have  done  that  for  which  many  citizens  believed  they 
had  no  warrant  in  law,  for  instance,  when  General  Jackson 
removed  the  public  deposits  from  the  bank  of  the  United 
States ;  but  the  doubt  consisted  in  the  question  whether  the 
law  warranted  the  measure  or  not.  It  was  not  claimed  that 
he  could  do  it  because  it  was  nowhere  prohibited.  The  Con- 
stitution of  the  United  States  declares  that  "  the  powers  not 
delegated  to  the  United  States  by  the  constitution,  nor  pro- 
hibited by  it  to  the  states,  are  reserved  to  the  states,  respect- 
ively, or  to  the  people ;"  and  the  principle  which  I  have 
mentioned  may  be  considered  as  involved  in  it ;  but  in  the 
different  states,  where  the  legislature  certainly  has  the  right, 
as  a  general  rule,  to  do  all  that  seems  necessary  for  the  com- 
mon Avelfare  and  is  not  specifically  prohibited,^  the  mentioned 
principle  prevails  regarding  the  executive.^ 


»  [Such  specific  checks  on  legislative  power  are  coming  move  and  more  into 
use.  The  people  are  beginning  to  distrust  the  legislatures,  as  they  fomierly  did 
the  executives.] 

=  I  have  already  mentioned  the  judgment  given  by  the  French  court,  with  refer- 
ence to  the  opening  of  letters  by  the  police  in  order  to  find  out  the  traces  of 
offences.  I  now  give  an  extract,  and  shall  italicize  those  passages  which  t)ear 
upon  the  subject  above  : 

"  Considering  that  if,  by  the  terms  of  existing  legislation,  and  particularly  by 
art.  187  of  the  penal  code,  functionaries  and  agents  of  the  government,  and  of 
the  post-ofhce  administration,  are  forbidden  either  to  suppress  or  to  open  ietters 
confided  to  the  said  administration,  this  disposition  cannot  reach  the  pretcct  of 
police,  acting  by  virtue  of  powers  conferred  upon  him  by  art.  10  of  the  Code  of 
Criminal  Instruction : 

II    . 


l62  ON  CIVIL  LIBERTY 

26.  The  supremacy  of  the  law  requires  that  where  enacted 
constitutions^  form  the  fundamental  law  there  be  some  autho- 


"  Considering  that  the  law,  in  giving  to  him  the  mission  to  investigate  offences, 
to  collect  evidence  in  support  of  them,  and  to  hand  their  authors  over  to  the  tri- 
bunals charged  with  punishing  them,  has  not  limited  the  tneans  placed  at  his  dis- 
position for  attaining  that  end  :* 

"  That,  in  fact,  the  right  of  perquisition  in  aid  of  judicial  instructions  is 
solemnly  affirmed  by  numerous  legal  dispositions,  and  that  it  is  of  common  law 
in  this  matter : 

"  That  the  seizure  in  question  was  made  in  order  to  follow  the  trace  of  an 
offence;  that  it  resulted  in  the  discovery  of  useful  and  important  facts ;  that, 
finally,  the  authors  of  the  said  letters  have  been  prosecuted  in  a  court  of  justice  : 

"  Considering,  moreover,  that  the  court  is  not  called  tipon  to  inquire  into  the 
origin  of  doctunents  submitted  to  this  appreciation  ;  that  its  mission  is  merely  to 
establish  their  authenticity  or  their  sincerity  ;  that,  in  fact,  the  letters  in  question 
are  not  denied  by  their  authors  : 

"  For  these  reasons  the  letters  are  declared  admissible  as  evidence,"  etc. 

It  is  pleasing  to  read  by  the  side  of  this  remarkable  judgment  so  simple  a  pas- 
sage as  the  following,  which  was  contained  in  an  English  paper  at  the  same  time 
that  the  French  judgment  was  given.  It  relates  to  a  London  police  regulation 
concerning  cabmen  : 

"  Now,  we  have  no  wish  to  palliate  the  bad  conduct  of  a  class  who  at  least  fur- 
nish amusing  topics  to  contemporaries.  By  all  means  let  the  evils  be  remedied ; 
but  let  the  remedy  come  within  the  limits  of  law.  It  will  be  an  evil  day  for 
England  when  irresponsible  legislation  and  police  law,  even  for  cabmen,  are 
recognized  and  applauded  by  a  certain  public  because  in  a  given  example  it 
happens  to  be  convenient  to  them.  If  the  ordinary  law  is  not  sufficient,  let  it  be 
reformed;  but  do  not  leave  the  making  of  penal  laws  to  the  police,  and  the 
execution  of  those  laws  to  the  correctional  tribunal  of  the  same  authority." — 
Spectator,  April  2,  1853. 

'  They  are  generally  called  written  constitutions ;  but  it  is  evident  that  the 
essential  distinction  of  constitutions,  derived  from  their  origin,  is  not  whether 
they  are  written  or  unwritten,  which  is  incidental,  but  whether  they  are  enacted 
or  cumulative.  The  English  constitution — that  is,  the  aggregate  of  those  laws  and 
rules  which  are  considered  of  fundamental  importance,  and  essential  in  giving  to 
the  state  and  its  government  those  features  which  characterize  them,  or  those  laws 
and  institutions  which  give  to  England  her  peculiar  political  organic  being — consists 
in  cumulated  usages  and  branches  of  the  common  law,  in  decisions  of  fundamental 
importance,  in  self-grown  and  in  enacted  institutions,  in  compacts,  and  in  statutes 
eml)odying  principles  of  political  magnitude.     From  these  the  Americans  have 


*  Does  not  this  argument  from  the  absence  of  restriction  remind  the  reader  of  that 
Baron  Viereck,  who  consented  to  his  daughter's  marrying  the  King  of  Denmark,  the 
undivorced  queen  living,  and  who  replied  to  an  expostulating  friend  that  he  could  find 
no  passage  in  the  Bible  prohibiting  kings  of  Denmark  from  having  two  wives? 


AND  SELF-GOVERNMENT.  163 

rity  which  can  pronounce  whether  the  legislature  itself  has  or 
has  not  transgressed  it  in  the  passing  of  some  law,  or  whether 
a  specific  law  conflicts  with  the  superior  law,  the  constitution. 
If  a  separate  body  of  men  were  established  to  pronounce  upon 
the  constitutionality  of  a  law%  nothing  would  be  gained.  It 
would  be  as  much  the  creature  of  the  constitution  as  the  legis- 
lature, and  might  err  as  much  as  the  latter.  Quis  custodiet 
custodes  ?  Tribunes  or  ephori  ?  They  are  as  apt  to  transgress 
their  powers  as  other  mortals.  But  there  exists  a  body  of 
men  in  all  well-organized  polities,  who,  in  the  regular  course 
of  business  assigned  to  them,  must  decide  upon  clashing  in- 
terests, and  do  so  exclusively  by  the  force  of  reason,  according 
to  law,  without  the  power  of  armies,  the  weight  of  patronage 
or  imposing  pomp,  and  who,  moreover,  do  not  decide  upon 
principles  in  the  abstract,  but  upon  practical  cases  which 
involve  them — the  middle  men  between  the  pure  philosophers 
and  the  pure  men  of  government.  These  are  the  judges — 
courts  of  law. 

When  laws  conflict  in  actual  cases,  they  must  decide  which 
is  the  superior  law  and  which  must  yield ;  and  as  we  have  seen 
that  according  to  our  principles  every  officer  remains  answer- 
able for  what  he  officially  does,  a  citizen,  believing  that  the 
law  he  enforces  is  incompatible  with  the  superior  law,  the  con- 
stitution, simply  sues  the  officer  before  the  proper  court  as 


extracted  what  has  appeared  important  or  applicable  to  our  circumstances ;  we 
have  added,  expanded,  and  systematized,  and  then  enacted  this  aggregate  as  a 
whole,  calling  it  a  constitution — enacted,  not  by  the  legislature,  which  is  a  crea- 
ture of  this  very  constitution,  but  by  the  people.  Whether  the  constitution  is 
written,  printed,  carved  in  stone,  or  remembered  only,  as  laws  were  of  old,  is 
not  the  distinctive  feature.  It  is  the  positive  enactment  of  the  whole  at  one  time, 
and  by  distinct  authority,  which  marks  the  difference  between  the  origin  of  our 
constitutions  and  those  of  England  or  ancient  Rome.  Although  the  term  written 
constitution  does  not  express  the  distinctive  principle,  it  was  nevertheless  natural 
that  it  should  have  been  adopted,  for  it^s  analogous  to  the  term  lex  scripta,  by 
which  the  enacted  or  statute  law  is  distinguished  from  the  unenacted,  grown,  and 
cumulative  common  law.  [The  distinguishing  feature  of  the  English  constitu- 
tion is  that  the  people  have  no  direct  voice  in  saying  what  it  shall  be  ;  the  par- 
liament has  theoretically  an  uncontrolled  power  of  adding  to  or  taking  away  from 
the  fundamental  laws.] 


164  ox  CIVIL   LIBERTY 

having  unlawfully  aggrieved  him  in  the  particulai  case.  The 
court,  bound  to  do  justice  to  every  one,  is  bound  also  to  decide 
this  case  as  a  simple  case  of  conflicting  laws.  The  court  does 
not  decide  directly  upon  the  doings  of  the  legislature.  It 
simply  decides,  for  the  case  in  hand,  whether  there  actually 
are  conflicting  laws,  and,  if  so,  which  is  the  higher  law  that 
demands  obedience  when  both  may  not  be  obeyed  at  the  same 
time.  As,  however,  this  decision  becomes  the  leading  decision 
for  all  future  cases  of  the  same  import,  until,  indeed,  proper 
and  legitimate  authority  shall  reverse  it,  the  question  of  con- 
stitutionality is  virtually  decided,  and  it  is  decided  in  a  natural, 
easy,  legitimate,  and  safe  manner,  according  to  the  principle 
of  the  supremacy  of  the  law  and  the  independence  of  justice. 
It  is  one  of  the  most  interesting  and  important  evolutions  of 
the  government  of  law,  and  one  of  the  greatest  protections  of 
the  citizen.  It  may  well  be  called  a  very  jewel  of  Anglican 
liberty,  one  of  the  best  fruits  of  our  political  civilization,' 

27.  Of  all  the  guarantees  of  liberty  there  is  none  more  im- 
portant, and  none  which  in  its  ample  and  manifold  develop- 
ment is  more  peculiarly  Anglican,  than  the  representative 
government.  Every  one  who  possesses  a  slight  acquaintance 
with  history  knows  that  a  government  by  assembled  estates 
was  common  to  all  nations  arising  out  of  the  conquests  of  the 
Teutonic  race ;  but  the  members  of  the  estates  were  deputies 
or  attorneys  sent  with  specific  powers  of  attorney  to  remedy 
specific  grievances.  They  became  nowhere,  out  of  England 
and  her  colonies,  general  representatives — that  is,  representa- 
tives for  the  state  at  large,  and  with  the  general  power  of 
legislation.  This  constitutes  one  of  the  most  essential  differ- 
ences between  the  deputative  medieval  estates  and  the  modern 
representative  legislatures — a  government  prized  by  us  as  one 
of  the  highest  political  blessings,  and  sneered  at  by  the  enemies 


'  The  ancient  justicia  of  Aragon  had  the  power  of  declaring  laws  unlawful,  or 
unconstitutional,  as  we  call  it,  against  the  king  and  estates,  but  it  was  done  with- 
out the  trial  of  a  specific  case  and  specific  persons.  He  was  therefore  simply  in 
these  cases  above  king  and  estates,  that  is,  king  himself;  and  it  became  necessary 
in  course  of  time  to  suppress  this  feature.     See  Pol.  Ethics,  vol.  ii.  p.  281. 


AND  SELF-GOVERNMENT.  1 65 

of  liberty  on  the  continent,  at  this  moment,  as  "  the  unwieldy- 
parliamentary  government."  I  have  endeavored  thoroughly 
to  treat  of  this  important  difference ;  of  the  fact  that  the  repre- 
sentative is  not  a  substitute  for  something  which  would  be 
better  were  it  practicable,  but  has  its  own  substantive  value ; 
of  political  instruction  and  mandates  to  the  representative, 
and  of  the  duties  of  the  representative,  in  the  Political  Ethics, 
to  which  I  must  necessarily  refer  the  reader. 

With  reference  to  the  great  subject  of  civil  liberty,  and  as 
one  of  the  main  guarantees  of  freedom,  the  representative 
government  has  its  value  as  an  institution  by  which  public 
opinion  organically  passes  over  into  public  will,  that  is  law; 
as  one  of  the  chief  bars  against  absolutism  of  the  executive 
on  the  one,  and  of  the  masses  on  the  other  hand ;  as  the  only 
contrivance  by  which  it  is  possible  to  induce  at  the  same  time 
an  essentially  popular  government  and  the  supremacy  of  the 
law,  or  the  union  of  liberty  and  order ;  as  an  invaluable  high 
school  to  teach  the  handling  and  the  protection  and  to  instil 
the  love  of  liberty ;  as  the  organism  by  which  the  average 
justice,  on  which  all  fair  laws  must  be  based,  can  be  ascer- 
tained; as  that  sun  which  throws  the  rays  of  publicity  on  the 
whole  government  with  a  more  penetrating  light  the  more 
perfect  it  becomes ;  and  as  one  of  the  most  efficacious  pre- 
ventives of  the  growth  of  centralization  and  a  bureaucratic^ 


*  The  term  bureaucracy  is  called  by  many  barbarous,  nor  has  it,  so  far  as  I 
know,  been  introduced  into  dictionaries  of  great  authority.  Be  it  so  ;  but,  while 
we  have  innumerable  words  compounded  of  elements  which  belong  to  different 
languages,  a  term  for  that  distinct  idea  which  is  designated  by  the  word  Bureau- 
cracy has  become  indispensable  in  the  progress  of  political  science,  because  the 
thing  which  must  be  named  has  distinctly  developed  itself  in  the  progress  of 
centralization  combined  with  writing.  In  spite,  therefore,  of  the  want  of  lexical 
authority,  it  is  almost  universally  used ;  for  necessity  presses.  I  am  under  this 
necessity,  and  shall  use  it  until  a  better  and  more  acceptable  term  be  proposed. 
Mandarinism  would  not  be  preferable.  Mandarinism  would  express  indeed  a 
government  by  mandarins,  by  officials,  but  it  would  not  designate  the  character- 
istics which  it  is  intended  to  point  out  by  the  term  bureaucracy,  namely,  a 
government  carried  on  not  only  by  a  hierarchy  of  officials,  but  also  by  scribbling 
bureaus.  All  bureaucracies  must  be  mandarinisms,  I  take  it;  but  every  man- 
darinism reed  not  be  a  bureaucracy.     I  observe  that  the  French,  from  whom 


1 66  Oi\   CIVIL  LIBERTY 

government — as  that  institution  without  which  no  clear  di- 
vision of  the  functions  of  government  can  exist. 

Before  we  consider  the  most  prominent  points  of  a  repre- 
sentative government,  so  far  as  it  is  a  guarantee  of  Hberty,  it 
may  be  proper  to  revert  to  two  subjects  just  mentioned. 

There  was  a  time  when,  it  seems,  it  was  universally  believed, 
and  many  persons  believe  still,  that  a  representative  govern- 
ment is  indeed  a  very  acceptable  substitute,  yet  only  a  substi- 
tute, for  a  state  of  things  which  would  be  the  perfect  one,  but 
which  it  is  physically  impossible  to  obtain  at  present,  namely, 
the  meeting  of  the  people  themselves,  instead  of  an  assembly 
of  their  representatives.  A  secondary  value  only  is  thus 
allowed  to  the  representative  system.  This  is  a  grave  error. 
Even  were  it  physically  or  locally  possible  to  assemble  the 
entire  American  people  and  rule  by  the  Athenian  pebble  or 
by  cheirotonia,  (the  show  of  hands,)  we  must  still  cling  to  the 
representative  system  as  a  substantive  institution.  The  market 
government  belongs  to  antiquity — the  period  of  city-states — 
not  to  our  period  of  national  states ;  and  national  states  have 
not  only  a  meaning  relating  to  physical  extent  of  country. 

It  has  been  observed  that  the  period  of  nationalization  of 
tribes  toward  the  close  of  the  middle  ages  was  one  of  the  most 
important  in  the  progress  of  civilization  and  modern  political 
development,  as  a  period  of  medieval  disintegration  and  di- 
vision would  be  the  necessary  effect  of  denationalization.  Rome 
perished  of  a  political  bankruptcy,  because  the  ancient  city- 
state  was  incompatible  with  an  extensive  empire.  A  represent- 
ative government  could  alone  have  saved  it ;  for  its  recollec- 
tions and  forms  of  liberty  prevented  a  full-blown  centralization, 
the  only  other  form  which  could  have  given  it  a  Russian 
stability.  Constantinc,  indeed,  established  a  centralized  court 
government ;  but  it  was  then  too  late.  The  decree  had  gone 
forth  that  the  vessel  should  part  amidst  the  breakers. 


indeed  the  term  has  been  received,  freely  use  it,  even  in  their  best  writings.  It 
is  to  be  regretted  that  we  Americans  frequently  use  the  French  term  Bureau  for 
the  old  term  Board.  There  are  different  associations  of  ideas  connected  with 
each  of  these  words. 


AND  SELF-GOVERNMENT.  1 67 

The  market  democracy  is  irreconcilable  with  liberty  as  we 
love  it.  It  is  absolutism  which  exists  wherever  power,  un- 
mitigated, undivided,  and  unchecked,  is  in  the  hands  of  any 
one  or  any  body  of  men.  It  is  the  opposite  of  liberty.  The 
people,  which  means  nothing  more  than  an  aggregate  of  men, 
require  fundamental  laws  of  restraint,  as  much  as  each  com- 
ponent individual  does.  Unless  we  divide  the  power  into  two 
parts — into  the  electing  power,  which  periodically  appoints 
and  recalls,  and  into  the  power  of  elected  trustees  appointed 
to  legislate,  and  who,  as  trustees,  are  limited  in  their  power — 
absolutism  is  unavoidable.  Absolutism  is  the  negation  of  pro- 
tection ;  protection  in  its  highest  sense  is  an  essential  element 
of  liberty.'  It  is  the  trusteeship  that  gives  so  high  a  value  to 
the  representative  government.  When  the  Athenians,  trj^ing 
the  unfortunate  generals  after  the  battle  of  Arginusae,  were  re- 
minded that  they  acted  in  direct  contradiction  to  the  laws,  they 
exclaimed  that  they  were  the  people ;  they  made  the  laws, 
why  should  they  not  have  the  privilege  of  disregarding  them  ?^ 

Every  one  feels  his  responsibility  far  more  distinctly  as 
trustee  than  otherwise.  Let  a  man  in  an  excited  crowd  be 
suddenly  singled  out  and  made  a  member  of  a  committee  to 
reflect  and  resolve  for  that  crowd,  and  he  will  feel  the  differ- 
ence in  an  instant.  How  easy  it  would  be  to  receive  the  most 
lavish  and  most  dangerous  money  grants  from  an  undivided 
and  absolute  multitude  !     Is  it  necessary  to  remind  the  reader 


'  To  refer  to  books  on  such  a  subject  is  very  difficult ;  for  it  almost  compre- 
hends the  whole  history  of  modern  liberty. 

I  have  treated  on  many  points  connected  with  the  representative  system,  in 
the  Political  Ethics.  The  reader  will  peruse  with  interest  M.  Guizot's  Histoire 
des  Origines  du  Gouvernement  representatif  en  Europe,  Paris,  1851.  It  is  in- 
teresting to  learn  the  views  of  a  Frenchman  of  such  celebrity  on  a  subject  of 
vital  interest  to  us.  Regarding  the  deputative  principle,  the  Histoire  de  la  For- 
mation et  des  Progrds  du  Tiers-Etat,  by  Augustin  Thierry,  Paris,  1853,  is  in- 
stractive.  I  am  sorry  that  I  have  not  been  able  to  read  Mr.  George  Harris's 
True  Theoiy  of  Representation  in  a  State,  London,  1852. 

'  [Xen.,  Hellen.,  i.  cap.  7,  §  12,  comp.  15.  It  ought,  however,  to  be  remarked 
that  the  Athenians  checked  the  action  of  the  ecclesia  by  requiring  previous  action 
of  the  senate,  {probonleumata,)  and  by  having  laws  emanate,  in  the  first  instan,*"*, 
not  from  the  ecclesia  proper,  but  from  a  large  committee  of  the  people.] 


1 68  ON  CIVIL  LIBERTY 

that  liberty  has  been  lost  quite  as  often  from  false  gratitude 
toward  a  personally  popular  man  as  from  any  other  cause  ? 
Trustees,  carefully  looking  around  them,  and  conscious  that 
they  have  to  give  an  account  of  themselves,  are  not  so  easily 
swayed  by  ravishing  gratitude.  The  trusteeship  in  the  repre- 
sentative government  is  the  only  means  yet  discovered  to 
temper  the  rashness  of  the  democracy  and  to  overcome  the 
obstinacy  of  monarchs. 

How  necessary  for  modern  liberty  a  national^  representa- 
tive government  is — a  representative  system  comprehending 
the  whole  state,  and  throwing  liberty  over  it  broadcast — will 
appear  at  once,  if  we  remember  that  local  self-government 
exists  in  many  Asiatic  countries,  where,  however,  there  is  no 
union  of  these  many  insulated  self-governments,  and  no  state 
self-government,  and  therefore  no  liberty.  We  shall  also  pres- 
ently see  that  •  where  there  is  only  a  national  representative 
government  without  local  self-government,  there  is  no  liberty 
as  we  understand  it. 

Nor  must  we  forget  two  facts,  which  furnish  us  with  an  im- 
portant lesson  on  this  subject.  Wherever  estates  or  other 
bodies  have  existed,  no  matter  how  great  their  privileges  were 
ar  how  zealously  they  defended  their  liberties,  civil  liberty  has 
not  been  firmly  established  ;  on  the  contrary,  it  has  been  lost 
in  the  course  of  time,  unless  the  estates  have  become  united 
into  some  national  or  state  representative  system.  Where 
are  the  liberties  of  Aragon,  and  where  is  the  freedom  of  the 
many  Germanic  polities  ?  It  was  one  of  the  greatest  political 
blessings  of  England  that  favorable  circumstances  promoted 


'  I  take  here  the  term  national  in  the  sense  of  relating  to  an  entire  society 
spread  over  tl  e  territory  of  an  extensive  state,  and  as  contradistinguished  from 
what  belongs  to  a  city-state,  or  from  the  system  of  the  middle  ages,  which  was 
deputative,  on  the  one  hand,  (see  my  Political  Ethics  on  Representative  System,) 
and  from  a  system  of  juxtaposition  rather  than  of  pervading  organization,  like  the 
Chinese  language  compared  to  our  grammatical  languages.  In  this  sense,  then, 
the  government  of  Virginia  or  New  York  would  be  national,  although  we  use  the 
word  in  America  as  synonymous  with  federal.  It  were  well  if  we  could  adopt 
a  distinct  term  for  national  in  the  first  sense.  See  the  note  at  the  end  of  this 
chapter. 


AA'D  SELF-GOVERNMENT.  1 69 

an  early  national  fusion  of  the  estates  into  two  houses.  On 
the  other  hand,  we  find  that  those  governments  which  can  no 
longer  resist  the  demand  of  liberty  by  the  people,  yet  are  bent 
on  yielding  as  little  as  possible,  always  have  tried  as  long  as 
was  feasible  to  grant  provincial  estates  only.  Some  monarchs 
of  this  century  have  shown  a  real  horror  of  national  representa- 
tion, and  would  rather  have  periled  their  crown  than  granted 
it ;  yet  some  of  these  monarchs  have  readily  granted  an 
urban  self-government  of  considerable  extent.  Their  minis- 
ters and  servants  have  frequently  gone  so  far  as  to  extol  local 
self-government  and  to  proclaim  the  idea  that  liberty  consists 
far  more  in  the  "administration"  being  left  to  the  people, 
than  in  any  general  representative  government.  In  doing  so, 
they  pointed  to  countries  in  which  the  latter,  existing  alone, 
had  brought  no  real  liberty.  Asia,  as  was  before  stated,  fur- 
nishes us  with  innumerable  instances  of  local  self-government, 
which  are  there  neither  a  source  nor  a  test  of  liberty.'  True 
liberty  stands  in  need  of  both,  and  of  a  bona  fide  representa- 
tive government  largely  and  minutely  carried  out.^ 


'  A  curious  picture  of  Asiatic  local  self-government,  without  any  liberty,  has 
lately  been  given  to  the  public,  in  Lieutenant-Colonel  C.  G.  Dixon's  Sketch  of 
Maiwara,  giving  a  Brief  Account  of  the  Origin  and  Habits  of  the  Mairs,  etc., 
London, 185 i. 

2  National  representation  is  closely  connected  with  the  idea  of  coioifry,  in- 
dispensal^le  for  high  modern  civilization.  Nations  and  Countries  appear  to  me 
so  much  elements  of  modern  civilization  and  of  modern  liberty  that  I  may  be  per- 
mitted to  give  an  extract  relating  to  this  topic,  from  my  Inaugural  Speech  in  1858: 

"Our  government  is  a  federal  union.  We  loyally  adhere  to  it  and  turn  our 
faces  from  centraHzation,  however  brilliant,  for  a  time,  the  lustre  of  its  focus  may 
appear,  however  imposingly  centred  power,  that  saps  self-government,  may  hide 
for  a  day  the  inherent  weakness  of  military  concentrated  polities.  But  truths  zxf 
truths.  It  is  a  truth  that  modern  civilization  stands  in  need  of  entire  countries; 
and  it  is  a  truth  that  every  government,  as  indeed  eveiy  institution  whatever,  is, 
by  its  nature)  exposed  to  the  danger  of  gradually  increased  and,  at  last,  excessive 
action  of  its  vital  principle.  Oiie-sidedness  is  a  universal  effect  of  man's  state 
of  sin.  Confederacies  are  exposed  to  the  danger  of  sejunction,as  unitary  govern- 
ments are  exposed  to  absorbing  central  power — centrifugal  power  in  the  one 
case,  centripetal  power  in  the  other.  That  illustrious  predecessor  of  ours,  from 
whom  we  borrowed  our  very  name,  the  United  States  of  the  Netherlands,  ailed 
long  with  the  paralyzing  poison  of  sejunction  in  her  limbs,  and  was  brought  to 
an  early  grave  by  it,  after  having  added  to  the  stock  of  humanity  the  worshipful 


I/O 


ON  CIVIL  LIBERTY 


names  of  William  of  Orange,  De  Witt,  Grotius,  De  Ruyter,  and  William  III.* 
There  is  no  German  among  you  that  does  not  sadly  remember  that  his  country, 
too,  furnishes  us  with  bitter  commentaries  on  this  truth;  and  we  are  not  exempt 
from  the  dangers  common  to  mortals.  Yet,  as  was  indicated  just  now,  the  patria 
of  us  moderns  ought  to  consist  in  a  wide  land  covered  by  a  nation,  and  not  in  a 
city  or  a  little  colony.  Mankind  have  outgrown  the  ancient  city-state.  Coun- 
tj-ies  are  the  orchards  and  the  broad  acres  where  modern  civilization  gathers  her 
grain  and  nutritious  fruits.  The  narrow  garden-beds  of  antiquity  suffice  for  our 
widened  humanity  no  more  than  the  short  existence  of  ancient  states.  Moderns 
stand  in  need  of  nations  and  of  national  longevity,  for  their  literatures  and  law, 
their  industry,  liberty,  and  patriotism ;  we  want  countries  to  work  and  write  and 
glow  for,  to  live  and  to  die  for.  The  sphere  of  humanity  has  steadily  widened,  and 
nations  alone  can  nowadays  acquire  the  membership  of  that  great  common- 
wealth of  our  race  which  extends  over  Europe  and  America.  Has  it  ever  been 
sufficiently  impressed  on  our  minds  how  slender  the  threads  are  that  unite  us  in 
a  mere  political  system  of  states,  if  we  are  not  tied  together  by  the  far  stronger 
cords  of  those  feelings  which  arise  from  the  consciousness  of  having  a  country  to 
cling  to  and  to  pray  for,  and  unimpeded  land  and  water  roads  to  move  on  ? 

"  Should  we,  then,  not  avail  ourselves  of  so  well  proved  a  cultural  means  of  fos- 
tering and  promoting  a  generous  nationality,  as  a  comprehensive  university  is 
known  to  be?  Shall  we  never  have  this  noble  pledge  of  our  nationality?  All 
Athens,  the  choicest  city-state  of  antiquity,  may  well  be  said  to  have  been  one 
great  university,  where  masters  daily  met  with  masters;  and  shall  we  not  have 
even  one  for  our  whole  empire,  which  does  not  extend  from  bay  to  bay  like  little 
Attica,  but  from  sea  to  sea,  and  is  destined  one  day  to  link  ancient  Europe  to 
still  older  Asia,  and  thus  to  help  completing  the  zone  of  civilization  around  the 
globe  ?  All  that  has  been  said  of  countries  and  nations  and  a  national  university 
would  retain  its  full  force  even  if  the  threatened  cleaving  of  this  broad  land  should 
come  upon  us.  But  let  me  not  enter  on  that  topic  of  lowering  political  reality, 
however  near  to  every  citizen's  heart,  when  I  am  bidden  by  you  to  discourse  on 
political  philosophy,  and  it  is  meet  for  me  not  to  leave  the  sphere  of  inaugural 
generalities." 

®  Every  historian  knows  that  William  of  Orange,  the  founder  of  the  Netherlands' 
republic,  had  much  at  heart  to  induce  the  cities  of  the  new  union  to  admit  representa- 
tives of  the  country  ;  but  the  "sovereign"  cities  would  allow  no  representatives  unless 
noblemen  to  the  farmers  and  land-owners,  who,  nevertheless,  were  taking  their  full 
share  in  the  longest  and  most  sanguinary  struggle  for  independence  and  liberty ;  but 
the  following  detail,  probably,  is  not  known  to  many.  The  estates  of  Holland  and 
West  Friesland  were  displeased  with  the  public  prayers  for  the  Prince  of  Orange, 
which  some  high-calvinistic  ministers  were  gradually  introducing,  in  the  latter  half  of 
the  seventeenth  century,  and  in  1663  a  decree  was  issued  ordaining  to  pray  first  of  all 
"  for  their  noble  high  mightinesses,  the  estates  of  Holland  and  West  Friesland,  as  the 
true  sovereign,  and  only  sovereign  power  after  God,  in  this  province ;  next,  for  the 
estates  of  the  other  provinces,  their  allies,  and  for  all  the  deputies  in  the  assembly  of 
the  States  General,  and  of  the  Council  of  State." 

"  Separatismus,"  as  German  historians  have  called  the  tendency  of  the  German 
princes  to  make  themselves  as  independent  of  the  empire  as  possible,  until  their 
treason  against  tlie  country  reached  "sovereignty,"  has  made  the  political  history  of 
Germany  resemble  the  river  Rhine,  whose  glorious  water  runs  out  in  a  number  of 
shallow  and  muddy  streamlets,  having  lost  its  imperial  identity  long  before  reacliing 
the  broad  ocean. 


AND  SELF-GOVERNMENT.  171 


CHAPTER    XVI. 

REI^RESENTATIVE    GOVERNMENT,    CONTINUED, BASIS   OF    PROP- 
ERTY.  DIRECT    AND    INDIRECT    ELECTIONS. 

28.  The  prominent  points  of  a  national  representative 
government,  considered  as  a  guarantee  of  liberty,  consist  in 
the  representative  principle,  that  is,  the  basis  of  representation 
and  the  right  of  voting  for  the  representative,  in  the  election 
laws,  in  the  fact  that  those  and  those  only  who  have  the  right 
to  vote  do  vote,  (hence  the  importance,  and,  I  believe,  the 
necessity,  of  registration  laws,)  and  in  the  organization  of  the 
representative  legislature,  with  its  own  protection  and  liberties. 

All  that  we  can  say  regarding  the  requirements  of  Anglican 
liberty  with  reference  to  the  principle  of  representation,  is  that 
it  be  a  broad  or  popular  one.  Universal  suffrage  cannot  be 
said  to  be  an  Anglican  principle,  whatever  the  American  view, 
of  which  we  shall  treat  by-and-by,  may  be.  The  application 
of  the  principle  of  a  wide  popular  representation,  however,  or 
an  extensive  right  of  voting,  has  constantly  though  slowly 
expanded  in  England,  and  continues  to  be  expanding. 

The  English,  not  allowing  universal  suffrage  or  indeed  a 
representation  based  upon  numbers  alone,  require  some  limit 
beyond  which  the  right  of  voting  shall  not  go.'    This  limit  is, 


»  [Tlie  system  of  representation  in  Great  Britain  had  long  been  most  unequal 
and  absurd  until  1832.  To  mention  but  one  fact — out  of  65S  members  of  the 
house  of  commons,  487  were  nominees  of  the  aristocracy  or  of  the  government, 
and  only  173  represented  independent  constituencies.  In  1832,  after  a  great 
struggle,  a  reform  bill  was  passed,  by  which  (i)  fifty-six  rotten  boroughs,  return- 
ing one  hundred  and  eleven  members,  were  disfranchised,  and  other  small 
boroughs  lost  in  all  thirty  members;  (2)  twenty-two  large  towns,  including  dis- 
tricts of  London,  gained  the  right  to  return  two  members  each,  twenty  to  return 
one  each,  and  the  members  for  the  larger  counties  were  increased  from  94  to 
159.     (3)  As  for  the  right  of  electing — in  the  boroughs  it  was  given  to  10/. 


1/2 


ON  CIVIL  LIBERTY 


as  a  general  rule,  which  has  however  its  exceptions,  indicated 
either  by  property  or  by  a  certain  annual  expense  which 
usually  designates  the  amount  of  income  over  which  man  may 
dispose,  namely,  house-rent.  Hence  it  is  often  said  that  prop- 
erty is  the  basis  of  representation  in  England.  This  is  not 
correct.  Property,  or  the  enjoyment  of  a  certain  revenue 
either  from  acquired  property  or  from  an  industrial  occupa- 
tion, gives  the  right  of  voting,  but  it  is  not  the  basis  of  repre- 
sentation. 

When  it  is  maintained  in  modern  times  that  property  ought 
to  be  the  basis  of  representation,  or  it  is  asserted  that  the 
English  constitution  is  founded  on  property,  an  inappropriate 
term  is  used,  which  carries  along  with  it  erroneous  associations 


householders  resident  in  the  place,  paying  rates  and  not  receiving  relief  from  the 
parish.  /«  t',e  counties  several  classes  were  added  to  the  old  forty-shilling 
freeholders,  viz.  :  copyholders  and  leaseholders  for  terms  of  years,  and  tenants  at 
will  paying  a  rent  of  50/.  a  year.     (See  May,  t.  chap.  6.) 

The  more  recent  bill  of  1867,  for  reforming  representation,  contains  among 
other  provisions  the  following  of  principal  importance,  (i)  The  franchise.  In 
the  boroughs  any  full-aged  man  not  legally  incapacitated  can  vote  in  parliamentary 
and  municipal  elections,  who  has  been  for  twelve  months  an  inhabitant,  as  owner 
or  tenant,  of  any  dwelling-house,  has  been  rated  to  rates  for  the  relief  of  the 
poor,  and  paid  his  rates  like  others;  but  no  joint  occupier  can  vote.  Also  the 
vote  is  given  to  every  lodger  in  the  boroughs  who  is  sole  tenant  of  a  dwelling- 
house  of  the  clear  yearly  value  of  10/.  or  upward,  has  resided  there  twelve  months 
before  the  last  day  of  July  of  any  year,  and  put  in  a  claim  to  he  registered.  In 
the  counties,  any  man  of  similar  status  can  vote,  who  is  seised  in  law  or  at  equity 
of  any  lands  or  tenements  of  freehold,  copyhold,  or  any  other  tenure,  for  his  own 
or  another's  life  or  any  lives,  of  the  clear  yearly  value  of  not  less  than  5/.  He 
also  has  the  vote  who  is  lessee  or  assignee  of  lands,  on  any  tenure,  for  the  un- 
expired residue  of  any  term  originally  created  for  a  period  of  not  less  than  60 
years,  of  at  least  5/.  net  yearly  value;  and  again,  one  who  occupies  lands  of  the 
ratable  value  of  12/.  or  over,  has  been  rated  and  paid  rates.  (2)  Distribution 
of  seats  in  parliament.  No  borough  having  in  1861  a  population  of  less  than 
10,000  could  return  more  than  one  member.  38  boroughs  were  thus  reduced,  ID 
new  boroughs  were  created,  3  cities  returned  three  members  instead  of  two,  2  old 
boroughs  returned  two  instead  of  one,  i  borough  was  divided  into  two,  and  13 
counties  were  subdivided  so  as  to  return  35  members.  (3)  In  London  no  one 
can  vote  for  more  than  three,  and  in  places  where  three  members  are  returned,  no 
one  can  vote  for  more  than  two.  In  1872,  ballot,  with  nomination  of  candi- 
dates, was  introduced.     The  balloting  has  some  rather  troublesome  formalities.] 


AND  SELF-GOVERNMENT.  173 

in  almost  all  discussions  on  this  subject.  When  we  say  that 
population  is  the  basis  of  representation,  we  mean  indeed  that 
one  representative  is  chosen  for  a  distinct  number  of  repre- 
sented citizens,  and  that  therefore  a  large  population  should 
have  more  representatives  than  a  small  one ;  but  when  it  is 
said  that  property  is  or  ought  to  be  the  basis  of  representa- 
tion, we  mean  in  almost  all  cases  nothing"  more  than  that  a 
certain  amount  of  property  or  revenue  is  required  to  entitle  a 
man  to  vote.  The  Roman  constitution  ascribed  to  Servius 
Tullius  was  really  founded  upon  prqperty,  because  the  six 
classes  of  citizens  actually  took  a  share  in  the  government  of 
the  state  in  proportion  to  the  property  they  held.'  Thus  like- 
wise there  is  a  partial  representation  of  property  prescribed 
by  the  constitution  of  South  Carolina,  for  the  composition  of 
the  state  senate,  inasmuch  as  the  small  but  wealthy  divisions 
of  the  lower  part  of  the  state  elect  a  number  of  senators 
disproportionately  large  compared  to  the  number  of  senators 
sent  from  the  upper  districts  of  the  state,  which  are  very 
populous  and  possessed  of  proportionately  less  property.  This 
was  at  least  the  case  when  the  constitution  was  adopted.^ 

What  is  really  meant  when  it  is  said  that  a  constitution 
ought  to  be  founded  on  property,  is  this :  that  a  minimum 
amount  of  property  ought  to  be  adopted  as  the  last  line  be- 
yond which  no  suffrage  ought  to  be  granted,  but  not  that  a 
capital  of  a  million  or  the  possession  of  a  thousand  acres  of 
land  ought  to  be  entitled  to  a  greater  share  in  government 
than  the  possession  of  a  few  thousand  dollars.  It  is  meant 
that  we  seek  for  a  criterion  which  will  enable  us  to  distinguish 
those  who  have  a  fair  stake  in  the  welfare  of  the  state  from 
those  who  have  not.  But  here  occurs  at  once  the  question  : 
Is  this  criterion  in  our  age  any  longer  safe,  just,  and  natural,' 
which  it  may  be  supposed  to  have  been  in  former  ages  ?  3   Are 


'  [But  it  was  majority  of  centuries,  and  not  of  votes,  which  determined  aii 
election.] 

»  [It  is  perhaps  needless  to  say  that  great  changes  have  been  made  in  the  con- 
stitution of  this  state  since  the  end  of  the  war  in  1S65.] 

i  (There  are  multitudes  in  the  United  States  who  still  believe  that  universal 


174 


ON  CIVIL  LIBERTY 


there  not  thousands  of  men  without  property  who  have  quite 
as  great  a  stake  in  the  pubHc  welfare  as  those  who  may  possess 
a  house  or  enjoy  a  certain  amount  of  revenue?  This  criterion 
becomes  an  actual  absurdity  when  by  property  landed  prop- 
erty only  is  understood.  It  was  indeed  in  the  middle  ages 
almost  the  exclusive  property  of  lasting  and  extensive  value ; 
but  nothing  has  since  changed  its  character  more  than  prop- 
erty itself  This  whole  question  is  one  of  vastest  extent, 
and  emphatically  belongs  to  the  science  5f  politics  and  real 
statesmanship.  In  regard  to  the  subject  immediately  in  hand, 
we  have  only  to  repeat  that  an  extensive  basis  of  representa- 
tion is  doubtless  a  characteristic  element  of  Anglican  liberty. 

29.  As  important  as  the  basis  of  representation — indeed, 
in  many  cases  more  important — is  the  question  whether  there 
shall  be  direct  elections  by  the  people,  or  whether  there  shall 
be  double  elections ;  that  is  to  say,  elections  of  electors  by  the 
constituents,  which  electors  elect  the  representative.  It  may 
be  safely  asserted  that  the  Anglican  people  are  distinctly  in 
favor  of  simple  elections.  Elections  by  electing  middle  men 
deprive  the  representation  of  its  directness  in  responsibility 
and  temper ;  the  first  electors  lose  their  interest,  because  they 
do  not  know  what  their  action  may  end  in  ;  no  distinct  can- 
didates can  be  before  the  constituents  and  be  canvassed  by 
them,  and,  inasmuch  as  the  number  of  electors  is  a  small  one, 
intrigue  is  made  easy. 

The  fact  that  a  double  or  mediate  election  foils  in  a  great 
degree  the  very  object  of  a  representative  government,  is  so 
well  known  by  the  enemies  of  liberty,  that  despotic  govern- 
ments, unable  to  hold  their  absolute  power  any  longer,  have 
frequently  struggled  hard  to  establish  universal  suffrage  with 
double  election.  An  intention  to  deceive,  or  a  want  of 
acquaintance  with  the  operation  of  the  principle,  must  explain 
the  measure.*     I  believe  that  neither  American  nor  English- 


suffrage  is  the  root  of  all  our  political  evils.     In  one  state  at  least — Connecticut 
— the  capacity  to  read  is  made  a  condition  for  being  made  a  "  freeman."] 

'  According  to  the  present  constitution  of  Prussia  (1859)  there  is  universal 
suffrage  for  the  electiin  of  a  certain   number  of  electors,  and  in  addition  a 


AXD  SELF-GOVERNMENT.  Is- 

mail would  think  the  franchise  worth  having  were  double 
elections  introduced,  and  so  decidedly  is  the  simple  election 
ingrained  in  the  Anglican  character,  that  in  the  only  notable 
case  in  which  a  mediate  election  is  prescribed  in  America, 
namely,  the  election  of  the  President  of  the  United  States, 
the  whole  has  naturally  and  of  itself  become  a  direct  election. 
The  constitution  is  obeyed,  and  electors  are  elected,  but  it  is 
well  known  for  which  candidate  the  elector  is  going  to  vote, 
before  the  people  elect  him.  There  is  but  one  case,  of  old 
date,  in  which  an  elector,  elected  to  vote  for  a  certain  candi- 
date for  the  presidency,  voted  for  another,  and  his  political 
character  was  gone  for  life ;  while  in  the  month  of  November, 
1856,  the  legislature  of  South  Carolina,  the  only  legislature 
in  the  United  States  which  has  retained  for  itself  the  election 
of  presidential  electors,  actually  "  instructed"  the  electors  to 
vote  for  Mr.  Buchanan,  and  in  the  state  of  Pennsylvania 
committees  belonging  to  different  parties  or  sections  of  parties 
agreed  upon  certain  "Union  Electoral  Tickets"  for  the  elec- 
tion of  electors,  to  satisfy  the  claims  of  the  different  voters. 
These  instances,  and  many  more  might  be  given,  show  how 
the  principle  of  a  double  election  has  been  wholly  abandoned 
in  the  election  for  the  president,  although  the  form  still  exists. 
Civil  liberty  demands  a  fair  representative  system ;  the 
latter  requires  that  the  representatives  really  represent  the 
people,  which  is  by  no  means  necessarily  obtained  by  simple 
universal  suffrage.  Indeed,  it  is  one  of  the  highest  problems 
of  political  philosophy  on  the  one  hand,  and  of  genuine  states- 
manship on  the  other,  to  establish,  combine,  and,  as  circum- 
stances may  require,  to  change  the  basis  of  representation. 
In  England  we  find  that  a  large  number  of  persons  lately 
urged  an  additional  "  representation  of  education."  Essential 
representation  requires  a  fair  representation  of  the  minority,'' 
which,  until  now,  has  been  obtained,  in  the  system  of  Anglican 


graduated  property  qualification  for  the  election  of  other  electors,  who  with  the 
former  elect  representatives. 

•  See  Political  Ethics  on  Opposition  and  Representatives. 


176  ON   CIVIL   LIBERTY 

liberty,  by  making  election  districts  sufficiently  small,  so  that 
persons  of  different  political  opinions  would  be  elected,  and  by 
discountenancing  "general  tickets."  It  might  be  supposed 
that  the  most  consistent  method,  opposite  to  the  "  general 
ticket,"  would  be  to  make  election  districts  so  small  that  each 
elects  but  one  person,  as  the  present  constitution  of  the  state 
of  New  York  prescribes  ; '  but  practice,  it  seems,  does  not  bear 
out  this  supposition  in  the  mentioned  state.  When  election 
districts  are  very  small,  many  citizens  Avhom  it  is  most  desira- 
ble to  see  in  the  legislature  decline  contending  with  paltry 
local  interests  and  jealousies.  And  here  it  may  be  mentioned 
that  a  marked  difference  between  England  and  America  con- 
sists in  the  fact  that  in  the  first-mentioned  country  voters 
may  take  their  representative  from  any  portion  of  the  coun- 
try, while  in  America  the  principle  prevails,  we  believe  univer- 
sally, that  the  representative  must  be  a  resident  in  his  con- 
stituency, which  is  an  additional  reason  that  election  districts 
ought  not  to  be  too  narrow.^ 

But  the  idea  of  representing  the  minority  in  a  more  direct 
manner  than  by  a  minority  in  the  house  of  representatives 
has  been  much  discussed  of  late  in  England,  and,  to  judge 
from  the  journals  of  the  day,  there  seem  to  be  many  persons 
who  believe  that  this  could  best  be  obtained  by  obliging  each 
voter  to  vote  for  a  number  of  representatives  less  than  the 
whole  number,  to  be  sent  to  parliament,  for  instance,  for  two 
members,  if  three  are  to  be  sent  there,  or  for  three,  if  five  are 
to  be  sent.  This  novel  feature  seems  to  have  been  actually 
adopted  in  some  colonial  constitutions.  No  one  is  able  to  say 
how  such  a  principle  may  operate  in  certain  conditions  of  the 
voters,  but,  as  a  general  principle,  it  would  seem  injudicious, 
inoperative  toward  the  desired  object,  and  not  Anglican.  An- 
other method  was  adopted  to  secure  the  representation  of  the 


'  1859- 

=  [A  resident  not  necessarily  in  the  district,  but  in  the  state  which  he  repre- 
sents. "  No  person  shall  be  a  representative  .  .  .  who  shall  not,  when  ekcted, 
be  an  inhabitant  of  *hat  state  in  which  he  shall  be  chosen."  Constit,,  art.  i. 
sect.  2,  2.] 


AND  SELF- G O  VERNMENT. 


177 


minority,  in  the  so-called  Ruatan  Warrant,  in  1856.  In  this 
instrument  every  voter  received  the  right  to  give,  if  four  repre- 
sentatives are  to  be  elected,  all  four  votes  to  one  person,  or 
three  to  one  and  one  to  another,  or  to  cast  his  four  votes  in 
equal  halves  for  two  persons.  This  is  legalizing,  and  indeed 
intensifying,  the  voting  of  "  plumpers,"  '  as  it  is  vulgarly  called 


'  [The  subject  of  representing  the  minority — so  important  in  a  country  where 
government  by  party  prevails — has,  since  Dr.  Lieber  published  his  second  edition 
of  this  work,  been  much  discussed,  and  already  has  a  large  literature  of  its  own. 
I  have  caused  two  notes  of  the  author's,  which  of  course  could  not  duly  present 
the  subject  to  the  reader,  to  be  omitted,  and  have  put  into  their  place  a  simple 
account  of  the  methods  which  have  been  suggested  for  attaining  this  end,  with 
the  briefest  possible  comments.  I  mention — i,  the  limited  voit, — i.e.,  the  vote  for 
a  less  number  of  names  than  there  are  places,  as  for  two  when  three  persons 
are  to  be  chosen.  This  method  was  introduced  into  the  bill  of  1867  for  reform- 
ing representation  in  Great  Britain.  2.  77^1?  cumulative  vote,  where  the  voter  is 
allowed  to  cast  all  or  more  than  one  at  least  of  his  votes  for  one  person — eg.,  to 
cast  two,  three,  or  four  for  one  candidate,  or  to  divide  them  among  several.  This 
plan  is  especially  applicable  when  the  practice  of  voting  by  general  tickets  pre- 
vails. 3.  The  election  by  lists,  a  Swiss  plan,  according  to  which  a  certain  num- 
ber of  lists  of  candidates,  as  many  on  each  list  as  there  are  representatives  in  all 
in  a  district,  are  prepared  beforehand,  and  each  voter  votes  for  one  of  these  lists. 
The  representatives  are  selected  from  each  of  these  lists  according  to  the  ratio  of 
the  votes  on  each  list  to  the  entire  number  of  votes — e.g.,  if  there  are  four  lists, 
and  10,000  voters,  and  4000  votes  for  one  list,  3000  for  another,  2000  for  a  third, 
1000  for  a  fourth,  then  4,  3,  2,  I  would  be  returned  as  representatives  from  the 
several  lists.  4.  Preferential  voting,  or  Mr.  Thomas  Hare's  plan,  in  a  book  first 
published  in  1859,  and  which  has  gone  through  four  editions.  This  plan  has  been 
advocated  by  J.  S.  Mill  in  his  Representative  Government,  chap,  vii.,  and  by 
other  persons  of  note.  This  plan  provides  that  each  voter  or  elector  may  vote  in 
the  order  of  preference  for  a  number  of  persons,  not  confining  himself  in  his  selec- 
tions to  his  own  locality.  When  the  votes  are  counted,  the  person  having  a 
number  of  votes  larger  than  the  electoral  quota,  that  is,  larger  than  the  number  of 
voters  divided  by  the  number  of  representatives,  is  elected,  and  all  the  votes  for 
him  above  the  quota  are  carried  down  to  the  next  person  on  the  list  needing  them 
in  order  to  be  elected.  The  somewhat  puzzling  details  of  this  plan  must  be 
passed  by.  Its  advantages  are  that  it  gives  a  fair  chance  to  all  interests  and 
classes  of  thinkers  to  unite,  although  dispersed  over  a  state  or  country ;  and  no 
elector  would  be  represented  by  one  whom  he  had  not  chosen.  5.  Substitute 
voting.  Candidates  may  cast  surplus  votes,  or  those  over  the  electoral  quota,  and 
insufficient  votes,  or  those  under,  and  may  thus  fill  up  the  places  which  have  not 
been  filled  by  the  voting  of  the  electors.  6.  Proxy  voting,  by  wliich  a  repre- 
sentative may  cast  as  many  votes  as  he  receives  multiples  of  the  electoral  quota. 

12 


178  ON  CIVIL   LIBERTY 

in  this  country,  a  kind  of  voting  generally  considered  unfair 
and  dishonest,  and  which  it  would  be  just  and  right  to  provide 
against  by  our  constitutions.  Each  ballot  ought  to  contain  as 
many  names  as  representatives  are  to  be  voted  for ;  if  not,  it 
ought  to  be  thrown  out. 

It  does  not  seem  to  be  the  Anglican  principle  to  elect,  with 
the  representative,  his  substitute  in  case  of  absence  of  the 
former  from  the  legislature.  If  a  representative  resigns  or 
dies,  another  is  elected;  if  he  absents  himself,  the  constituents 
lose  his  vote.  It  seems  that  representation  is  considered  too 
direct  a  relation  to  admit  of  a  substitute  beforehand.  Yet 
for  conventions  it  is  customary  in  America  to  elect  substitutes. 
They  do  not  allow  of  sufficient  time  for  a  new  election.  On 
the  continent  of  Europe,  sitpplcans  are  immediately  elected.* 

As  a  matter  of  historical  curiosity,  I  would  direct  attention 
to  the  circuitous  ways  and  multiplied  elections  by  which  it 
was  frequently  attempted  in  the  middle  ages  to  insure  an 
impartial  or  pure  election.  The  master  of  the  Knights  of 
Malta  was  elected  by  no  less  than  seventeen  consecutive  elec 
tions  of  electors,  each  election  connected  with  oaths  ;^  and  the 
Doge  of  Venice  was  elected  by  nine  different  acts,  namely,  five 
elections  alternating  with  four  acts  of  drawing  lots,^  with  the 
addition  of  collateral  votings. 


These  plans  admit  of  some  modifications.  There  might,  for  instance,  be  an 
aliquot  part  of  the  number  of  representatives  chosen  from  localities,  and  the  rest 
chosen  from  the  state  at  large  on  Mr.  Hare's  plan. 

All  of  these  plans,  which  imply  voting  for  persons  outside  of  a  small  area,  re- 
quire more  knowledge  of  men  than  belongs  to  the  great  majority  of  voters  under 
a  system  of  universal  suffrage.] 

'  We  elect  substitutes  for  executive  officers.  The  Roman  custom  was  to  take, 
in  case  of  need,  the  predecessor  of  the  failing  incumbent,  a  principle  adopted,  at 
least  in  former  times,  in  Geneva  and  other  cities.  [When  a  consul  or  tribune 
died,  the  surviving  colleague,  or  colleagues,  at  first  co-optated  another.  After- 
wards a  colleague  was  chosen,  {stiffecttis!)  When  inferior  magistrates  died  or 
resigned,  the  superior  held  the  comitia  to  fill  his  place.  See  T.  Mommsen,  Rom. 
Staatsr.,  vol.  i.  p.  161.] 

*  Vertot's  History  of  the  Knights  of  Malta,  folio  edition,  London,  1728,  vol 
ii.,  Old  and  New  .Statutes. 

3  Daru,  Histoire  de  Venise,  Paris,  1S21,  vol.  i. 


AND  SELF-GOVERNMENT.  1 79 

30.  The  representative  principle  farther  requires  that  the 
management  of  the  elections  be  in  the  hands  of  the  voters,  or 
of  a  popular  character ;  that  especially  the  government  do  not 
interfere  with  them,  either  in  the  election  bureau  itself,  or  by 
indecently  proposing  and  urging  certain  candidates  ;  that  the 
house  for  which  the  candidates  are  elected  be  the  sole  judge  of 
the  validity  of  the  election,  and  that  the  opening  of  the  poll 
do  not  depend  upon  the  executive,  which  by  mere  omission 
might  prevent  the  entire  election  in  order  to  exclude  a  dis- 
tasteful citizen  from  the  house. 

The  beginning  of  an  election,  the  appointment  of  managers, 
the  protection  of  the  minority  in  this  matter,  and  the  con- 
scientious counting  of  votes,  where  the  ballot  exists,  are  always 
matters  of  much  intei'est  and  of  great  practical  difficulty,  to 
all  those  who  have  not  traditionally  learned  it.  Collections  of 
election  laws  are  therefore  very  instructive ;  and  the  labor  of 
giving  birth  to  an  election  with  nations  unaccustomed  to  liberty 
is  very  great.  Mr.  Dumont  gives  some  instructive  and  amusing 
anecdotes,  relating  to  the  first  French  elections,  in  his  Memoirs 
of  Mirabeau. 

The  English  law  is  that  all  the  military  must  leave  the 
place  where  an  election  is  going  on,  and  can  only  enter  it 
when  called  in  by  the  town  authorities  or  the  justices  of  the 
peace,  in  case  of  riot. 

The  British  house  of  commons  is  the  sole  judge  of  the 
validity  of  elections ;  and  the  same  office  is  assigned  to  the 
house  of  representatives  by  the  American  constitution.' 

One  of  the  gravest  charges  against  the  Duke  of  Polignac 
and  his  fellow-members  of  the  cabinet,  when  they  were  tried 
for  their  lives  after  the  revolution  of  1830,  was  that  they  had 
allowed  or  induced  Charles  X.  to  influence  certain  electors,  by 
letter,  to  elect  government  candidates ;  while  the  government 
under  the   late    so-called    republic  openly  supported  certain 


'  A  full  statement  of  all  the  laws  relating  to  these  guarantees  in  England  will 
be  found  in  Stephens's  De  Lolme,  Rise  and  Progress  of  the  British  Constitution  ; 
and  Stoi7's  Commentaries  on  the  Constitution  of  the  United  States  gives  our  con 
stitutional  law  on  these  subjects. 


l8o  ON  CIVIL  LIBERTY 

persons  as  government  candidates,  and  bishops  wrote  then, 
and  have  since  sent,  solemn  pastoral  letters,  calling  on  their 
flocks  to  elect  men  of  certain  political  color.  It  is  wholly  in- 
different to  decide  here  whether  peculiar  circumstances  made 
this  interference  necessary.  I  simply  maintain  that  it  is  not 
liberty. 

31.  Representative  bodies  must  be  free.  This  implies  that 
they  must  be  freely  chosen,  neither  under  the  threat  or  violence 
of  the  executive,  nor  of  the  rabble  or  whatever  portion  of  the 
people ; '  that  when  met,  they  are  independent  of  the  threat 
or  seduction  of  the  executive,  or  of  the  mob,  armed  or  not 
armed ;  that  they  are  protected  by  the  law  as  a  representative 
body;  and  that  a  wise  parliamentary  law  and  usage  protect, 
within  the  body,  the  rights  of  each  representative  and  the 
elaboration  of  the  law. 

Representative  legislatures  cannot  be  truly  the  organisms 
through  which  public  opinion  passes  into  public  will,  nor  can 
they  be  really  considered  representative  bodies,  if  the  mem- 
bers, or  at  least  the  members  of  the  popular  branch,  are  not 
elected  for  a  moderately  short  period  only ;  if  the  legislature 
does  not  sit  frequently  ;  if  the  elections  for  the  popular  branch 
are  not  for  an  entire  renewal  of  the  house;  and  if  the  member 
is  made  answerable  for  what  he  says  in  the  house  to  any  one 
or  any  power  besides  the  house  to  which  he  belongs. 

What  a  moderately  short  period  or  the  frequency  of  sessions 
means,  cannot,  as  a  matter  of  course,  be  absolutely  stated. 
Fairness  and  practice,  as  well  as  the  character  of  the  times, 
must   necessarily  settle   these   points.     England   had  a   law 


'  Fearful  cases  to  the  contrary  have  happened  in  France  and  our  own  countiy. 
In  the  former  country  a  court  of  justice  decided  against  a  person,  because,  not 
being  the  government  candidate,  he  had  dared  to  print  and  distribute  his  own 
ticket.  Mr.  de  Montalembert  made  a  speech  against  the  abuse,  whereupon 
the  minister  of  the  Interior,  Mr.  Billault,  formerly  a  socialist,  issued  a  circular 
to  the  prefects,  instructing  them,  April,  1857,  how  to  conduct  themselves 
regarding  the  distribution  of  election  tickets.  In  our  country  sanguinary  troubles 
have  occurred  in  New  Orleans  and  Baltimore,  in  October,  1857,  which  called 
forth  proclamations  of  the  governors  that  revealed  a  frightful  state  of  things. 
And  these  crimes  at  elections  were  not  restricted  to  the  two  mentioned  cities. 


AND  SELF-GOVERNMENT.  iSi 

that,  from  the  year  1696,  each  parliament  should  not  last 
longer  than  three  years,  but  in  17 16  the  septennial  bill  was 
carried,  under  a  whig  administration,  forced  to  do  it  by  the 
intrigues  of  the  tories,  who  were  for  bringing  back  the 
Stuarts.*  This  law  has  ever  since  prevailed ;  but  even  Pitt 
called  it,  in  1783,  one  of  the  greatest  defects  in  the  system 
of  popular  representation.  Chatham,  his  father,  had  expressed 
himself  against  it^  before  him,  and  it  would  really  seem  that 
England  will  return,  at  no  distant  time,  to  a  shorter  period  of 
parliaments. 3 

When  Count  Villele,  in  1824,  was  desirous  of  diminishing 
the  liberal  spirit  of  the  French  charter,  he  introduced  and 
carried  a  septennial  bill,  which  was,  however,  abolished  in  1830 
by  the  "  July  revolution."  Parliaments  for  too  short  a  period 
would  lead  to  a  discontinuous  action  of  government,  and  un- 
settle instead  of  settling ;  hence  they  would  be  as  much 
against  liberty  as  too  long  ones.  In  America,  two  years  have 
become  a  pretty  generally  adopted  time  for  the  duration  of 
legislatures.  It  is  a  remarkable  fact  that  the  people  in 
America  feel  so  perfectly  safe  from  attacks  of  the  executive 
that,  in  several  states,  where  the  constitutions  have  been 
revised,  a  fundamental  law  has  been  enacted  that  the  legis- 
lature shall  not  meet  oftener  than  every  two  years.  This  is 
to  avoid  expense  and  over-legislation.  The  general  principle 
remains  true  that  "parliaments  ought  to  be  held  frequently," 
as  the  British  Declaration  of  Rights  and  Liberties  ordains  it. 
The  Constitution  of  the  United  States  makes  the  meeting  and 
dissolution  of  congress  entirely  independent  of  the  executive, 
and  enacts  that  congress  shall  meet  at  least  once  in  every 


»  [For  the  triennial  bill  of  the  Long  Parliament,  Feb.  16,  1641,  and  its  repeal 
in  1664,  but  with  the  provision  continued  that  parliaments  should  not  be  inter- 
mitted for  more  than  three  years,  see  Hallam,  ii.  pp.  131,  447.  The  govern- 
ment could  not  be  carried  on  with  an  annual  session  of  parliament.  Nothing 
kept  the  estates  on  the  continent  from  a  fit  development  so  much  as  frequent  and 
long  intermissions  of  their  sittings.] 

2  Volume  ii.  page  174,  of  Correspondence  of  William  Pitt,  Earl  of  Chatham. 

3  I  have  given  a  sufficiently  long  account  of  the  Septennial  Bill,  under  this 
head,  in  the  Encyclopaedia  Americana. 


1 82  ON  CIVIL  LIBERTY 

year,  on  the  first  Monday  in  December,  and  that  the  house 
of  representatives  shall  be  entirely  renewed  every  second 
year. 

As  to  the  irresponsibility  of  members  for  their  remarks  in 
parliament,  the  Declaration  of  Rights  enacts  "  that  the  freedom 
of  speech,  and  debates  or  proceedings  in  parliament,  ought  not 
to  be  impeached  or  questioned  in  any  court  or  place  out  of 
parliament."  This  was  adopted  by  the  framers  of  our  con- 
stitution, in  the  words  that  "  for  any  speech  or  debate  in  either 
house,  they  [senators  and  representatives]  shall  not  be  ques- 
tioned in  any  other  place."  ^ 

32.  A  farther  and  peculiar  protection  is  granted  to  the 
members  of  the  legislature,  both  in  the  United  States  and  in 
England,  by  protecting  them  against  arrest  during  session,  ex- 
cept for  certain  specified  crimes.  The  English  house  of  com- 
mons "  for  the  first  time  took  upon  themselves  to  avenge  their 
own  injury,  in  1543,"="  when  they  ordered  George  Ferrers,  a 
burgess  who  had  been  arrested  in  going  to  parliament,  to  be 
released,  and  carried  their  point.  "But  the  first  legislative 
recognition  of  the  privilege  was  under  James  I."  3  The  Con- 
stitution of  the  United  States  enacts  that  senators  and  repre- 
sentatives shall  "  in  all  cases,  except  treason,  felony,  and 
breach  of  the  peace,  be  privileged  from  arrest  during  their 
attendance  at  the  session  of  their  respective  houses,  and  in 
going  to  and  returning  from  the  same." 


'  Free  discussion  on  all  things  that  appear  important  to  the  representatives  is 
a  right  which  was  obtained  after  hard  struggles,  and  only  in  comparatively  recent 
times.  Elizabeth  repeatedly  warned  the  commons,  in  no  gentle  terms,  not  to 
meddle,  with  high  matters  of  state,  which  they  could  not  understand.  James  I. 
and  Charles  I.  did  the  same. 

A  similar  spirit  is  now  visible  on  the  continent  of  Europe  in  unfree  or  half-free 
countries.  In  the  bed  of  justice,  held  in  1602,  Louis  XIV.,  then  fourteen  years 
old,  forbade  his  parliament  [which,  however,  was  properly  a  judicial  body]  to 
deliberate  on  government  and  finance  or  upon  the  conduct  of  the  ministers  of 
his  choice,  and  forbade  its  members  to  assume  too  sumptuous  habits  in  the 
palaces  of  the  great.     Chevenix,  on  Nat.  Charact.,  vol.  ii.  p.  510. 

*  Hallam,  Hist,  of  English  Constitution,  5th  edit.,  vol.  i.  p.  268. 

3  Ibidem,  vol.  i.  p.  303. 


AND  SELF-GOVERNMENT.  183 

33.  It  is  farther  necessar>'  that  every  member  should  possess 
the  initiative,  or  right  to  propose  any  measure  or  resolution. 
This  is  universally  acknowledged  and  established  where  Angli- 
can liberty  exists,  not  by  enactment,  but  by  absence  of  prohibi- 
tion, and  as  arising  out  of  the  character  of  a  member  of  the 
legislature  itself     In  most  countries  not  under  the  aegis  of 
Anglican  liberty,  this  right  of  the  initiative  has  been  denied  the 
members,  and  government,  that  is,  the  executive,  has  reserved 
it   to    itself     So  has  the  so-called   legislative    corps    of  the 
present  French  empire  no  initiative.     Napoleon  III.  took  it 
to    himself   exclusively,    immediately   after    the    coup   d'etat. 
The  French  legislative  corps  has  indeed  not  even  the  privi- 
lege of  amendment ;    it  has  not  the  right  of  voting  on  the 
ministerial  estimates,  except  on  the  whole  estimate  of  one 
ministry  at  once.*     In  some  countries,  as  in  France  under  the 
charter  of  the  July  revolution,  the  initiative  is  vested  in  the 
houses  and  in  government ;  that  is  to  say,  the  government,  as 
government,  can  propose  a  measure  through  a  minister,  who 
is  not  a  member  of  the  house.     In  England  no  bill  can  be 
proposed  by  the  executive  as  such,  but,  as  every  cabinet  minis- 
ter is  either  a  peer  or  must  contrive  to  be  elected  into  the 
commons,  the  ministers  have  of  course  the  right  of  the  initia- 
tive as  members  of  their  respective  houses.     The  Constitution 
of  the  United  States  prohibits  any  officer  of  the  United  States 
from  being  a  member  of  either  house,  and  the  law  does  not 
allow  the  members  of  the  administration  a  seat  and  the  right 
to  speak  in  the  houses.     Some  think  that  a  law  to  that  effect 
ought  to  be  passed.     The  representatives  of  our  territories  are 
in  this  position ;  they  have  a  seat  in  the  house  of  representa- 
tives, and  may  speak,  but  have  no  vote.     A  minister  had  the 
right  to  speak  in  either  house,  under  the  former  French  char- 
ters, in  his  capacity  of  cabinet  minister,  whether  he  was  a 
member  of  the  house  or  not.     Whenever  the  executive  of  the 
United  States  is  desirous  to  have  a  law  passed,  the  bill  must 


'  Why,  indeed,  it  is  called  legislative  corps  does  not  appear.     Legislative 
corpse  would  be  intelligible. 


1 84 


ON  CIVIL  LIBERTY 


be  proposed  by  some  triend  of  the  administration  who  is  a 
member  of  one  or  the  other  house. 

It  has  been  mentioned  already  that  the  initiative  of  money 
bills  belongs  exclusively  to  the  popular  branch  of  the  legis- 
lature, both  in  the  United  States  and  in  England,  by  the  con- 
stitution in  the  one,  and  by  ancient  usage,  which  has  become 
a  fundamental  principle,  in  the  other. 


AND  SELF-GOVERNMENT.  185 


CHAPTER    XVII. 

PARLIAMENTARY    LAW   AND   USAGE. — THE   SPEAKER. TWO 

HOUSES. THE   VETO. 

34.  It  is  not  only  necessary  that  the  legislature  be  the  sole 
judge  of  the  right  each  member  may  have  to  his  seat,  but 
that  the  whole  internal  management  and  the  rules  of  proceed- 
ing with  the  business  belong  to  itself  It  is  indispensable  that 
the  legislature  possess  that  power  and  those  privileges  which 
are  necessary  to  protect  itself  and  its  own  dignity,  taking 
care,  however,  that  this  power  may  not,  in  turn,  become  an 
aggressive  one. 

In  this  respect  are  peculiarly  important  the  presiding  officer 
of  the  popular  branch,  or  speaker,  the  parliamentary  law,  and 
the  rules  of  the  houses. 

The  speaker  of  the  English  commons  was  in  former  times 
very  dependent  on  the  crown.  Since  the  revolution  of  1688 
his  election  may  be  said  to  have  become  wholly  independent. 
It  is  true  that  the  form  of  obtaining  the  consent  of  the  mon- 
arch is  still  gone  through,  but  it  is  a  form  only,  and  a  change 
of  the  administration  would  unquestionably  take  place  were 
the  ministers  to  advise  the  crown  to  withhold  its  consent. 

Were  the  refusal  insisted  on,  disturbances  would  doubtless 
follow,  which  would  end  in  a  positive  declaration  and  distinct 
acknowledgment  on  all  hands  that  the  choice  of  the  speaker 
"belongs,  and  of  right  ought  to  belong,"  to  the  house  of  com- 
mons. There  is  no  danger  on  that  score  in  England,  so  long 
as  a  parliamentary  government  exists  there  at  all.  The 
growth  of  the  commons'  independence  in  this  respect  is  as 
interesting  a  study  as  it  is  historically  to  trace  step  by  step 
any  other  expanding  branch  of  British  liberty. 

The  Constitution  of  the  United  States  says  that  "  the  house 


1 86  ON  CIVIL  LIBERTY 

of  representatives  shall  choose  their  speaker  and  other  offi- 
cers," and,  so  chosen,  he  is  speaker,  without  any  other 
sanction. 

The  charter  granted  by  Louis  XVIII.  of  France  pre- 
scribed that  "  the  president  of  the  chamber  of  deputies  is 
nominated  by  the  king  from  a  list  of  five  members  presented 
by  the  chamber."  This  was  altered  by  the  revolution  of 
1830,  and  the  charter  then  adopted  decreed  that  "the  presi- 
dent of  the  chamber  of  deputies  is  to  be  elected  by  the 
chamber  itself  at  the  opening  of  each  session."  It  need  not 
be  added  that,  according  to  the  "  constitution  of  the  empire," 
the  emperor  of  the  French  simply  appoints  the  president  of 
the  "  legislative  corps."  In  all  the  states  of  the  Union  the 
speakers  are  within  the  exclusive  appointment  of  the  houses. 
In  the  British  colonial  legislatures  the  speaker  must  be  con- 
firmed by  the  governor,  but,  as  was  observed  of  the  speaker  of 
the  commons,  if  consent  were  refused  it  would  be  a  case  of 
disagreement  between  the  administration  and  the  legislature, 
which  must  be  remedied  either  by  a  new  administration  or  a 
new  house — that  is,  by  new  elections. 

The  presiding  officer  of  the  upper  house  is  not  made  thus 
dependent  upon  it.  In  England,  the  chief  officer  of  the  law 
the  lord  chancellor  or  keeper  of  the  seals,*  presides  over  the 
house  of  peers.     There  seems  to  be  a  growing  desire  in  Eng- 


'  A  keeper  of  the  seals,  whom  usage  does  not  require  to  be  a  peer,  is  now  ap- 
pointed as  the  chief  officer  of  the  law,  only  when,  for  some  reason  or  other,  no 
lord  chancellor  is  appointed.  The  keeper  of  the  seals,  nevertheless,  presides  in 
the  house  of  lords,  or  "  sits  on  the  woolsack."  The  chancellor  is  now  always 
made  a  peer  if  he  is  not  already  a  member  of  the  house  of  lords ;  and  he  is  always 
a  member  of  the  cabinet.  This  mixture  of  a  judicial  and  political  character  is 
inadmissible  according  to  American  views;  yet  it  ought  to  be  remembered,  as  an 
honorable  fact,  that  no  complaint  of  partiality  has  been  made  in  modern  times 
against  any  lord  chancellor  in  his  judicial  capacity,  although  he  is  so  deeply 
mixed  up  with  politics.  Lord  Eldon  was  probably  as  uncompromising,  and  per- 
haps as  bigoted,  a  politician  as  has  ever  been  connected  with  public  affairs,  but  I 
am  not  aware  that  any  suspicion  has  existed  on  this  ground  against  his  judicial 
impartiality.  There  is  at  present  a  traditional  fund  of  uncompromising  judicial 
rectitude  in  England  which  has  never  been  so  great  at  any  other  period  of  her 
own  history   or  excelled  in  any  other  country. 


AND  SELF-GOVERNMENT.  1 87 

land  wholly  to  separate  the  lord  chancellor  from  the  cabinet 
and  politics.  At  present  he  is  always  a  member  of  the  ad- 
ministration, and,  of  course,  leaves  his  office  when  the  cabinet 
to  which  he  belongs  goes  out.  It  will  be  an  interesting 
subject  to  determine  who  shall  preside  over  the  lords,  if  the 
change  thus  desired  by  many  should  take  place. 

The  United  States  senate  is  presided  over  by  the  Vice- 
President  of  the  United  States,  who  is  elected  by  the  Union 
at  large,  as  the  President  is.  It  must  be  observed,  however, 
that  the  chancellor  on  the  woolsack,  and  the  Vice-President 
of  the  United  States  as  president  of  the  senate,  exercise  no 
influence  over  their  respective  legislative  bodies,  that  can 
in  any  degree  be  compared  to  that  of  the  speakers  over  their 
houses.  The  American  senate  and  the  British  house  of  lords 
allow  but  very  little  power,  in  regulating  and  appointing,  to 
the  presiding  officer,  who  interferes  only  when  called  upon  to 
do  so.' 

The  power  of  the  houses  of  parliament  over  persons  that 
are  not  members,  or  the  privileges  of  parliament,  or  of  either 
house,  so  far  as  they  affect  the  liberty  of  individuals  and  the 
support  of  their  own  power,  constitute  what  is  called  parlia- 
mentary law — an  important  branch  of  the  common  law.  Like 
all  common  law,  it  consists  in  usage  and  decisions ;  there  are 
doubtful  points  as  well  as  many  firmly  settled  ones.  It  must 
be  learned  from  works  such  as  Hatsell's  Precedents,  etc., 
Townsend's  History  of  the  House  of  Commons,  and  others. 

As  a  general  remark,  it  may  be  stated  that,  with  the  rise  of 
liberty  in  England,  the  jealousy  of  the  house  of  commons  also 


'  This  difference  in  the  position  of  the  presiding  officers  appears,  among  other 
things,  from  the  fact  that  the  members  of  the  house  of  lords  address  "  My  lords," 
and  not  the  chancellor,  while  usage  and  positive  rules  demand  that  the  member 
of  the  other  house  who  wishes  to  speak  shall  address  '*  Mr.  Speaker,"  and 
receive  "  the  floor"  from  him.  The  chancellor  would  only  give  the  floor  if  ap- 
pealed to  in  case  of  doubt.  In  the  United  States  senate,  the  president  of  the 
senate  is,  indeed,  directly  addressed,  although  occasionally  "  senators"  have  been 
addressed  in  the  course  of  a  speech.  That  body,  however,  appoints  its  commit- 
tees, and  leaves  little  influence  to  the  presiding  officer,  who,  it  will  be  remem- 
bered, is  not  a  member  of  the  senate,  and  has  a  casting  vote  only. 


1 88  ON  CIVIL  LIBERTY 

rose,  and  continued  during  the  period  of  its  struggle  with  the 
executive ;  and  that,  as  the  power  of  the  house  has  become 
confirmed  and  acknowledged,  the  jealousy  of  the  house  has 
naturally  abated.  I  very  much  doubt  whether  at  any  earlier 
period  the  committee  of  privileges  would  have  made  the  same 
declaration  which  it  made  after  Lord  Cochrane,  in  1815,  had 
been  arrested  by  the  marshal  of  the  king's  bench,  while  sitting 
on  the  privy  councillor's  bench  in  the  house  of  commons, 
prayers  not  yet  having  been  read.  The  committee  declared 
that  "  the  privileges  of  parliament  did  not  appear  to  have 
been  violated  so  as  to  call  for  the  interposition  of  the  house."' 

The  two  American  houses  naturally  claim  the  "  power  of 
sending  for  persons  and  papers  and  of  examining  upon  oath," 
and  they  have  also  exercised  the  power  of  punishing  disturb 
ances  of  their  debates  by  intruders,  and  libellers  of  members 
or  whole  houses.  But  no  power  to  do  so  is  explicitly  conferred 
by  the  Constitution  of  the  United  States.^ 

Of  far  greater  importance  is  the  body  of  the  -rules  of 
procedure  and  that  usage  which  has  gradually  grown  up  as  a 
part  of  common  law,  by  which  the  dispatch  of  parliamentary 
business    and    its   protection  against  impassioned    hurry   are 


'  I  would  refer  the  general  reader,  on  this  and  kindred  subjects,  to  the  article 
Parliament,  in  the  Political  Dictionary,  London,  1846. 

2  This  is  not  the  place  for  discussing  the  doubts  which  some  have  entertained 
regarding  the  power  of  the  houses  of  congress  to  do  that  which  is  possessed  by 
every  court  of  justice,  though  the  lowest,  namely,  to  arrest  and  punish  disturbers. 
The  doubt  is  simply  on  the  ground  that  it  has  not  been  conferred.  But  there  are 
certain  rights  which  flow  directly  from  the  existence  of  a  thing  itself,  and  some 
that  are  the  necessary  consequence  of  action  and  life,  and  without  which  neither 
can  manifest  itself.  A  legislative  body  without  the  powf  r  of  sending  for  persons 
to  be  examined  by  committees  would  be  forced  to  le  islate,  in  many  cases,  in 
the  dark.  It  is  true  that  legi-^lative  bodies  have  become  tyrannical ;  but  it  must 
not  be  forgotten  that  wherever,  in  the  wide  range  of  history,  any  struggle  for 
liberty  has  taken  place,  we  find  that  a  struggle  to  establish  the  habeas  corpus 
principle  has  always  accompanied  it,  and  that  this  struggle  for  securing  personal 
liberty  is  always  against  the  executive.  I  do  not  remember  a  single  case  of  an 
established  and  separate  guarantee  of  personal  liberty  against  parliamentary 
violence. 

The  reader  is  referred  to  Mr.  Justice  Story's  Comm.  on  the  Const.  U.  S.,  chap, 
xii.,  and  to  Chancellor  Kent's  Commentaries. 


AXD  SELF-GOVERXMEXT.  1 89 

secured,  and  by  which  the  order  and  freedom  of  debate,  fair- 
ness, and  an  organic  gestation  of  the  laws  are  intended  to  be 
obtained.  ParHamentar>'  practice,  or  rules  of  proceeding  and 
debate,  such  as  have  been  developed  by  England,  independ- 
ently of  the  executive,  and,  like  the  rest  of  the  common  law, 
been  carried  over  to  our  soil,  form  a  most  essential  part  of  our 
Anglican  constitutional,  parliamentary  liberty.  This  practice, 
as  we  will  call  it  for  brevity's  sake,  is  not  only  one  of  the 
highest  importance  for  legislatures  themselves,  but  serves  as 
an  element  of  freedom  all  over  the  country,  in  every  meeting, 
small  or  large,  primary  or  not.  It  is  an  important  guarantee 
of  liberty,  because  it  serves  like  the  well-worn  and  banked 
bed  of  a  river,  which  receives  the  waters  that,  without  it, 
would  either  lose  their  force  and  use  by  spreading  over  plains, 
or  become  ruinous  by  their  impetuosity  when  meeting  with 
obstruction.  Every  other  nation  of  antiquity  and  modern 
times  has  severely  suffered  from  not  having  a  parliamentary 
practice  such  as  the  Anglican  race  possesses,  and  no  one 
familiar  with  history  and  the  many  attempts  to  establish  liberty 
on  the  continent  of  Europe  or  in  South  America  can  help 
observing  how  essentially  important  that  practice  is  to  us,  and 
how  it  serves  to  ease  liberty,  if  we  may  say  so.' 


'  The  ancients  had  no  parliamentary  law  and  usage.  The  Greek  agora  could 
of  course  not  have  it.  Mass  meetings  cannot  debate ;  they  can  only  ratify  or 
refuse  proposed  measures.  [But  there  was  debate  on  the  probouleumata  of  the 
senate  at  Athens,  which  might  be  added  to  or  modified  as  well  as  rejected,  and 
free  discussion  took  place  on  other  subjects.  The  laws  of  order  also  were  not 
bad.]  It  is  the  same  in  the  democratic  Swiss  cantons,  where  the  people  meet  in 
primary  assemblage.  (See  Political  Ethics.)  In  the  Roman  senate  there  was  no 
debating  proper.  There  was  rather  a  succession  of  set  speeches;  and  I  may  be 
permitted  to  state  here  that  in  debating  oratory,  in  replying  on  the  spot  vigorously 
and  clearly  to  an  adversary,  the  best  orators  of  the  last  and  present  centuries  are 
greatly  superior  to  the  ancients. 

Since  the  publication  of  the  first  edition,  an  American  senator,  Mr.  Edward 
Everett,  has  added  his  testimony  to  the  vital  importance  of  Anglican  parlia- 
mentary rules.  On  December  8,  1853,  when  resolutions  with  reference  to  the 
late  Vice-President  of  the  United  Stales,  (and,  therefore,  presiding  officer  of  the 
senate,)  W.  Rufus  King,  were  under  discussion,  Mr.  Everett  observed,  in  the 
course  of  his  remarks  : 

«'  In  fact,  sir,  he  was  highly  endowed  with  what  Cicero  beautifully  commends 


1 90  ON  CIVIL  LIBERTY 

It  is  not  a  French  "  reglement,"  prescribed  by  the  executive 
with  but  Httle  room  for  self-action ;  nor  does  it  permit  legis- 
lative disorder  or  internal  anarchy.  It  has  been  often  observed 
that  the  want  of  parliamentary  practice  created  infinite  mis- 
chief in  the  first  French  revolution.  Dumont  mentions  that 
there  was  not  even  always  a  distinct  proposition  before  the 
convention  ;  and  the  stormiest  sessions,  which  frequently  ended 
by  the  worst  decrees — the  decrets  d' acclamation — were  those 
in  which  there  were  speeches  and  harangues  without  proposi- 
tions. Sir  Samuel  Romilly'  says:  "  If  one  single  rule  had 
been  adopted,  namely,  that  every  motion  should  be  reduced 
into  writing  in  the  form  of  a  proposition  before  it  was  put  from 
the  chair,  instead  of  proceeding,  as  was  their  constant  course, 
by  first  resolving  the  principle,  as  they  called  it,  (decreter  le 
principe,)  and  leaving  the  drawing  up  of  what  they  had  so 
resolved  (or,  as  they  called  it,  la  redaction)  for  a  subsequent 
operation,  it  is  astonishing  how  great  an  influence  it  would 
have  had  in  their  debates  and  on  their  measures."^ 

The  great  importance  of  the  subject  and  the  general  supe- 
riority of  the  English  parliamentary  practice  have  been  ac- 
knowledged by  French  writers,  practically  acquainted  with  it ; 
especially  by  the  author  of  a  work  the  full  title  of  which  I  shall 
give  in  a  note,  because  it  shows  its  interesting  contents.^ 


as  the  boni  Senatoris  pritdeitiia,  the  'wisdom  of  a  good  senator;'  and  in  his 
accurate  study  and  ready  application  of  the  rules  of  parliamentary  law  he  ren- 
dered a  service  to  the  country,  not  perhaps  of  the  most  brilliant  kind,  but 
assuredly  of  no  secondaiy  importance.  There  is  nothing  which  so  distinguishes 
the  great  national  race  to  which  we  belong,  as  its  aptitude  for  government  by 
deliberative  assemblies;  its  willingness,  while  it  asserts  the  largest  liberty  of  par- 
liamentary right,  to  respect  what  the  senator  from  Virginia,  in  another  connection, 
has  called  the  self-imposed  restrictions  of  parliamentary  order;  and  I  do  not 
think  it  an  exaggeration  to  say  that  there  is  no  trait  in  their  character  which  has 
proved  more  conducive  to  the  dispatch  of  the  public  business,  to  the  freedom  of 
debate,  to  the  honor  of  the  country — I  will  say  even  which  has  done  more  to 
establish  and  perpetuate  constitutional  liberty." 

'  He  was  himself  of  unmixed  French  descent,  as  Lord  Brougham  observes, 
although  his  family  had  resided  for  generations  in  England. 

'  Memoirs  of  the  Life  of  Sir  Samuel  Romilly,  etc.,  2d  edit.,  vol.  i.  p.  103. 

3  A  Treatise  on  the  Formation  of  Laws,  (Trait6  de  la  Confection  des  Lois,) 


AND  SELF- GO  VERNMENT. 


191 


Foreigners  frequently  express  their  surprise  at  the  ease  with 
which,  in  our  country,  meetings,  societies,  bodies,  communi- 
ties, and  even  territories, '  constitute  and  organize  themselves, 
and  transact  business  without  violence,  and  without  any  force 
in  the  hands  of  the  majority  to  coerce  the  minority,  or  in  the 
hands  of  the  minority  to  protect  itself  against  the  majority. 
One  of  the  chief  reasons  of  this  phenomenon  is  the  universal 
familiarity  of  our  people  with  parliamentary  practice,  which 
may  be  observed  on  board  of  any  steamboat  where  a  number 
of  persons,  entire  strangers  to  one  another,  proceed  to  pass 
some  resolution  or  other,  and  which  they  learn  even  as  chil- 
dren. There  are  few  schools  the  members  of  which  have 
not  formed  some  debating  society,  where  parliamentary  forms 
are  observed,  and  where  the  rigorously  enforced  fine  im- 
presses upon  the  boy  of  ten  or  eleven  years  the  rules  which 
the  man  of  forty  follows  a§  naturally  as  he  bows  to  an  ac- 
quaintance.^ 

The  Constitution  of  the  United  States  says  that  "  each  house 


or  an  Inquiry  into  the  Rules  (R^glements)  of  the  French  Legislative  Assemblies, 
compared  with  the  Parliamentary  Forms  of  England,  the  United  States,  Belgium, 
Spain,  Switzerland,  etc.,  by  Ph.  Vallette,  Advocate,  etc.,  and  Secretary  of  the 
Presidency  of  the  Chamber  of  Deputies,  and  by  Benat  Saint-Martin,  Advocate, 
etc.,  2d  edit.,  Paris,  1839 ;  with  the  words  of  Mr.  Dupin,  who  long  presided  over 
the  chamber,  as  motto  :  "  The  excellence  of  laws  depends  especially  upon  the 
care  taken  in  the  elaboration  of  the  bills.  The  drawing  up  of  laws  constitutes  a 
large  share  of  their  efficiency." 

'  As  a  striking  instance  may  be  mentioned  the  whole  procedure  of  the  people 
of  Oregon,  when  congress  omitted  to  organize  the  territory,  and  ultimately 
"  Organic  Laws"  were  adopted  "  until  such  time  as  the  United  States  of  America 
extend  their  jurisdiction  over  us."  They  were  printed  by  the  senate.  May  21, 
1846,  and,  although  consisting  of  a  few  pages  only,  form  a  document  of  great 
interest  to  the  political  philosopher  in  more  than  one  respect.  A  French  states- 
man of  mark  wrote  to  the  author,  years  ago,  from  Algeria :  "  I  wish  your  way 
of  organizing  distant  territories,  or  of  allowing  them  to  organize  themselves, 
could  be  transplanted  to  this  colony."  Justice  requires  to  add  now  (1859)  that 
our  Kansas  troubles  had  not  then  occurred. 

*  An  excellent  book  of  its  kind  is  the  small  work  of  Judge  L.  S.  Gushing, 
Rules  of  Proceeding  and  Debate  in  Deliberative  Assemblies,  Boston,  Mass.  It 
has  gone  through  many  editions.  The  same  author  published  in  1855,  Law  and 
Practice  of  Legislative  Assemblies  in  the  Unhed  States. 


192 


ON  CIVIL  LIBERTY 


may  determine  the  rules  of  its  proceedings,  punish  its  members 
for  disorderly  behavior,  and,  with  the  concurrence  of  two-thirds, 
expel  a  member."  If,  however,  the  parliamentary  practice  had 
not  already  been  spread  over  the  colonies,  like  the  common 
law  itself,  this  power,  justly  and  necessarily  conferred  on  each 
house,  would  have  been  of  comparatively  little  advantage. 
Parliamentary  practice — that  ars  obstetrix  aniinannn,  as  Mr. 
Bentham  calls  it,  although  it  ought  to  be  called  the  obstetric 
art  of  united  bodies  of  men,  for  in  this  lies  the  difficulty — is 
not  a  thing  to  be  invented,  nor  to  be  decreed,  but  must  be 
developed.' 

It  is  not  only  a  guarantee  of  the  free  share  of  every  repre- 
sentative in  the  legislation  of  his  countr}^,  but  it  is  also,  as  has 
been  indicated,  a  guarantee,  for  the  people,  that  its  legislature 
remain  in  its  proper  bounds,  and  that  the  laws  be  not  decreed 
as  the  effects  of  mere  impulse  or  passion. 

It  is  a  psychological  fact  that  whatever  interests  or  excites 
a  number  of  separate  individuals  will  interest  or  excite  them 
still  more  when  brought  together.  .They  countenance  one 
another ;  and  that  psychical  reduplication  which,  for  bad  or 
good,  produces  so  great  an  effect  wherever  individuals  of  the 
same  mind  or  acting  under  the  same  impulse  come  in  close 
contact,  must  be  guarded  against  in  representative  assemblies. 


'  Mr.  Jeremy  Bentham's  Tactique  des  Assemblies  Legislatives,  edited  by  E. 
Dumont,  Geneva,  181 6,  is  no  pure  invention,  and  could  have  been  written  by  an 
Englishman  or  American  only. 

See  also  Mr.  Jefferson's  Manual  of  Parliamentary  Practice  for  the  use  of  the 
senate  of  the  United  States. 

There  is  a  very  curious  book,  Parliamentary  Logic,  etc.,  by  Right  Hon.  W. 
Gerard  Hamilton,  (called  in  his  time  Single-Speech  Hamilton,)  with  Considera- 
tions on  the  Corn  Laws,  by  Dr.  Samuel  Johnson,  London,  1808.  The  copy 
which  I  own  belonged  to  Dr.  Thomas  Cooper.  That  distinguished  man  has 
written  the  following  remark  on  the  fly-leaf:  "  This  book  contains  the  theory  of 
deception  in  parliamentaiy  debate  ;  how  to  get  the  better  of  your  opponent,  and 
how  to  make  the  worse  appear  the  better  reason.  It  is  the  well-written  work  of  a 
hackneyed  politician.  .  .  .  The  counterpart  to  it  is  the  admirable  tract  of  Mr. 
Jeremy  Bentham  on  Parliamentary  Logic,  the  book  of  Fallacies.  No  politician 
ought  to  be  ignorant  of  the  one  book  or  the  other.  They  are  -ivell  worth  (not 
perusing,  but)  studying.  T.  C." 


AND  SELF-  G O  VERNMENT. 


193 


Parliamentary  practice,  as  we  possess  it,  is  as  efficient  a  means 
to  calm  and  to  regulate  these  excitements,  as  the  laws  of  evi- 
dence and  the  procedure  of  courts  are  in  tempering  exciting 
trials  and  impassioned  pleadings. 

These  remarks  may  fitly  conclude  with  the  words  of  Judge 
Story,  which  he  uttered  when  he  left  the  speaker's  chair  of  the 
Massachusetts  house  of  representatives,  to  take  his  seat  on 
the  bench  of  the  supreme  court  of  the  United  States.  They 
ought  to  be  remembered  by  every  one  on  both  sides  of  the 
Atlantic  that  prizes  practical  and  practicable  liberty : 

"  Cheered,  indeed,  by  your  kindness,  I  have  been  able,  in 
controversies  marked  with  peculiar  political  zeal,  to  appreciate 
the  excellence  of  those  established  rules  which  invite  liberal 
discussions,  but  define  the  boundary  of  right  and  check  the 
intemperance  of  debate.  I  have  learned  that  the  rigid  enforce- 
ment of  these  rules,  while  it  enables  the  majority  to  mature 
their  measures  with  wisdom  and  dignity,  is  the  only  barrier  of 
the  rights  of  the  minority  against  the  encroachments  of  power 
and  ambition.  If  anything  can  restrain  the  impetuosity  of 
triumph,  or  the  vehemence  of  opposition — if  anything  can 
awaken  the  glow  of  oratory,  and  the  spirit  of  virtue — if  any- 
thing can  preserve  the  courtesy  of  generous  minds  amidst  the 
rivalries  and  jealousies  of  contending  parties,  it  will  be  found 
in  the  protection  with  which  these  rules  encircle  and  shield 
every  member  of  the  legislative  body.  Permit  me,  therefore, 
with  the  sincerity  of  a  parting  friend,  earnestly  to  recom- 
mend to  your  attention  a  steady  adherence  to  these  venerable 
usages."^ 

35.  If  parliamentary  practice  is  a  guarantee  of  liberty  by 
excluding,  in  a  high  degree,  impassioned  legislation,  and  aiding 
in  embodying,  in  the  law,  the  collective  mind  of  the  legisla- 
ture, the  principle  of  two  houses,  or  the  bicameral  system, 
as  Mr.  Bentham  has  called  it,  is  another  and  no  less  efficient 
guarantee. 

Practical  knowledge  alone  can  show  the  whole  advantage  of 


'  Life  and  Letters  of  Joseph  Story,  Boston,  Mass.,  1851,  vol.  i.  p.  203. 

13 


194 


ON  CIVIL  LIBERTY 


this  Anglican  principle,  according  to  which  we  equally  discard 
the  idea  of  three  and  four  estates,  and  of  one  house  only. 
Both  are  equally  and  essentially  un-Anglican.  Although, 
however,  practice  alone  can  show  the  whole  advantage  that 
may  be  derived  from  the  system  of  two  houses,  it  must  appear, 
nevertheless,  as  a  striking  fact  to  every  inquirer  in  distant 
countries,  that  not  only  has  the  system  of  two  houses  his- 
torically developed  itself  in  England,  but  it  has  been  adopted 
by  the  United  States,  and  all  the  states,  as  well  as  by  the 
single  territories,  and  by  all  the  British  colonies,  where 
local  legislatures  exist.  We  may  mention  even  the  African 
state  of  Liberia.  The  bicameral  system  accompanies  the 
Anglican  race  like  the  common  law,^  and  everywhere  it  suc- 
ceeds ;  while  no  one  attempt  at  introducing  the  unicameral 
system,  in  larger  countries,  has  so  far  succeeded.  France, 
Spain,  Naples,  Portugal, — in  all  these  countries  it  has  been 
tried,  and  everywhere  it  has  failed.  The  idea  of  one  house 
flows  from  that  of  the  unity  of  power,  so  popular  in  France. 
The  bicameral  system  is  called  by  the  advocates  of  democratic 
unity  of  power  an  aristocratic  institution.  This  is  an  utter 
mistake.  In  reality  it  is  a  truly  popular  principle  to  insist  on 
the  protection  of  a  legislature  divided  into  two  houses ;  and  as 
to  the  historical  view  of  the  question,  it  is  sufficient  to  state 
that  two  houses  have  been  insisted  upon  and  rejected  by  all 
parties,  aristocratic  and  popular,  according  to  the  circum- 
stances of  the  times.  In  this  the  principle  resembles  the 
instruction  of  the  representative  by  his  constituents.  This 
too  has  been  insisted  on  and  rejected  by  all  parties  at  different 
periods. 

Attempts  were  made  in  our  earlier  times  to  establish  a  single 
house,  for  instance  in  Pennsylvania,^  but   the   practical   and 


'  No  instance  illustrating  this  fact  is  perhaps  more  striking  than  the  meeting 
of  settlers  in  Oregon  territoi-y,  when  congress  had  neglected  to  provide  for  them, 
as  has  been  mentioned  in  a  previous  note.  The  people  met  for  the  purpose  of 
establishing  some  legislature  for  themselves,  and  at  once  adopted  the  principle 
of  two  houses.     It  is  to  us  as  natural  as  the  jury. 

»  It  was  at  the  period  when  Dr.  Franklin  asked  why  people  would  put  horses 


AND  SELF-GOVERNMENT.  1 95 

sober  sense  of  the  Anglican  people  led  them  back  to  the  two 
houses.  The  danger  was  perhaps  not  trifling.  "During  the 
American  revolution,  there  grew  up  a  party  in  every  state 
who,  ignorant  of  this  great  political  truth,  opposed  the  notion 
that  our  state  constitutions  should  be  conformed  to  the  English 
model.  No  less  a  person  than  Dr.  Franklin  was  of  this  party. 
And  through  his  influence,  in  a  great  measure,  Pennsylvania 
adopted  a  government  of  a  single  legislative  assembly.  When 
he  went  to  Paris,  he  took  with  him  the  different  American 
constitutions.  Mr.  Turgot,  to  whom  he  showed  them,  dis- 
regarding, as  Dr.  Franklin  had  done,  the  voice  of  history, 
approved  that  of  Pennsylvania,  and  condemned  those  framed 
after  the  English  constitution.  In  a  letter  to  Dr.  Price  of 
England,  Mr.  Turgot  says :  '  I  am  not  satisfied  with  the 
constitutions  which  have  hitherto  been  formed  for  the  different 
states  of  America.  By  most  of  them,  the  customs  of  England 
are  imitated  without  any  particular  motive.  Instead  of  col- 
lecting all  authority  into  one  centre,  that  of  the  nation,  they 
established  different  bodies,  a  body  of  representatives,  a  council, 
and  a  governor,  because  there  is  in  England,  a  house  of 
commons,  a  house  of  lords,  and  a  king.  They  endeavored  to 
balance  three  different  powers,  as  if  this  equilibrium,  which  in 
England  may  be  a  necessary  check  to  the  enormous  influence 
of  royalty,  could  be  of  any  use  in  republics  founded  upon  the 
equality  of  all  the  citizens,  and  as  if  establishing  different 
orders  of  men  was  not  a  source  of  divisions  and  disputes.' 
This  notion  of  a  single  national  assembly  began  to  gain  ground 
so  rapidly  in  America,  that  the  elder  Adams,  in  order  to 
counteract  it,  in  the  beginning  of  the  year  1787  published  his 
Defence  of  the  American  Constitutions.  In  the  September 
of  the  same  year,  the  national  convention  changed  the  federal 


not  only  before,  but  also  behind  the  wagon,  pulling  in  opposite  directions.  The 
true  answer  would  have  been,  that  whenever  a  vehicle  is  pulled  down  an  inclined 
plane  we  actually  do  employ  an  impeding  force,  to  prevent  its  being  dashed  to 
pieces.  [Georgia,  also,  and  the  Confederation  itself,  had  but  one  chamber. 
Franklin  wished  (Curtis's  Hist.,  i.  435)  to  introduce  the  same  system  into  the 
Constitution  in  the  Convention  of  1 787.] 


196  ON  CIVIL  LIBERTY 

constitution  from  the  single  assembly  of  the  confederacy,  to  a 
government  formed  after  the  English  model.  Pennsylvania 
changed  her  government  also ;  and  all  the  states  and  territo- 
ries of  this  vast  confederacy  have  now  governments  framed  on 
the  plan  of  the  English."^ 

Mr.  de  Lamartine  pronounced  the  true  reason  why  we 
ought  to  hold  fast  to  the  bicameral  system,  although  he  spoke 
against  it.  When  in  the  last  French  constituent  assembly 
Mr.  Odillon  Barrot  had  urged  with  ability  the  adoption  of  two 
houses,  Mr.  de  Lamartine  replied  that  the  great  principle  of 
unity  (he  meant,  no  doubt,  of  centralization)  required  the 
establishment  of  one  house,  and  that,  unless  the  legislature 
was  vested  in  one  house  alone,  it  would  be  too  difficult  to 
make  it  pass  over  from  a  simple  legislature  to  an  assembly 
with  dictatorial  power.  This  is  precisely  the  danger  to  be 
avoided.^     Parliamentary  practice  and  the  two-house  system 


'  I  have  quoted  this  long  passage  from  the  First  Report  of  the  Commissioners, 
appointed  by  the  General  Assembly  of  Maryland,  to  revise,  simplify,  and  abridge 
the  Rules  of  Practice,  Pleadings,  etc.  in  the  courts  of  the  State,  Frederic  City, 
Md.,  1855, — a  work  important  also  with  reference  to  the  subject  of  codification. 
This  first  report  is  believed  to  have  been  written  by  Mr.  Samuel  Tyler,  one  of 
the  commissioners,  a  gentleman  alike  distinguished  as  advocate  and  writer  on 
philosophy.  His  last  work,  on  the  Progress  of  Philosophy  in  the  Past  and  the 
Future,  entitles  him  to  a  place  among  the  profoundest  writers  on  philosophy. 
His  friend,  the  late  Sir  William  Hamilton,  acknowledged  his  great  merits. 

The  reader  is  referred  to  De  Tocqueville's  Ancien  Regime  for  numerous  pas- 
sages showing  how  general  the  error  of  Turgot  was  in  France,  and  how  sincerely 
the  Anglican  diversity,  necessarily  accompanying  self-government,  was  dis- 
relished by  the  French,  profoundly  worshipping,  not  only  unity  of  power,  but 
also  uniformity  of  action. 

*  The  speech  was  delivered  on  the  27th  September,  1848.  Mr.  de  Lamartine 
speaks  of  a  division  of  the  sovereignty  into  two  parts,  by  two  houses !  Poor 
sovereignty !  Wliat  strange  things  have  been  imagined  under  that  word  !  If  the 
reader  can  find  access  to  that  speech,  I  advise  him  to  peruse  it,  for  it  is  curious 
from  beginning  to  end,  especially  as  coming  from  a  person  who  for  a  time  was 
one  of  the  rulers  of  France.  His  exact  words  are  these.  Speaking  of  domestic 
dangers,  he  says:  "To  such  a  danger  you  must  not  think  of  opposing  two  or 
three  powers.  That  which  ought  to  oppose  it  is  a  direct  dictatorship,  uniting 
within  its  hand  all  the  powers  of  the  state."  He  adds  more  of  the  kind,  but 
this  extract  will  sufiSce. 

Mr.  Lamartine  committed  another  grave  error.     He  said  that  two  houses  in 


AND  SELF-GOVERNMENT.  197 

are  subjects  of  such  magnitude  that  it  is  impossible  here, 
where  they  are  mentioned  as  guarantees,  to  enter  upon  details ; 
but  I  cannot  dismiss  them  without  recommending  them  to  the 
serious  and  repeated  attention  of  every  one  who  may  have 
looked  upon  them  as  accidents  rather  than  essentials.  The 
French  acknowledge  as  the  first  thing  to  be  obtained,  power, 
force  ;  and  their  philosophical  writers,  such  as  Rousseau,  seek, 
almost  exclusively,  a  philosophical  or  legitimate  source  of  that 
power.  Hence  their  view  of  universal  suffrage,  and  the  power, 
be  it  that  of  an  all-powerful  Caesar,  or  of  a  concentrated  single 
chamber,  all-providing  and  all-penetrating,  when  once  estab- 
lished, arising  out  of  it.  Hence  the  prosecution  of  Mr.  de 
Montalembert,  as  having  attacked  the  legitimate  power  of  the 
emperor,  when  he  had  written  against  the  French  view  of 
universal  suffrage.  The  Anglicans  seek,  first  of  all,  for  free- 
dom, for  self-government ;  and  then  for  guarantees  of  these. 

Experience  has  proved  to  the  English  and  Americans  that 
to  have  a  measure  discussed  entirely  de  novo  by  a  different 
set  of  men,  with  equal  powers,  and  combined  upon  a  different 
basis — that  this,  and  the  three  readings,  with  notice  and  leave 
of  bringing  in,  and  the  going  into  committee  before  the  third 
reading,  have  a  wonderful  effect  in  sifting,  moderating,  dis- 
covering, and  in  enlightening  the  country.  Take  the  history 
of  any  great  act  of  parliament  or  congress,  and  test  what  has 


the  United  States  were  natural,  because  we  are  a  confederacy,  and  the  senate 
was  established  to  represent  the  states  as  such.  But  he  seems  not  to  have  been 
aware  that  all  our  states,  in  their  unitary  character,  have  established  the  same 
system,  and  that  it  is  as  natural  to  the  men  on  the  shores  of  the  Pacific  as  to  those 
in  Maine,  or  to  the  settlers  on  the  Swan  River. 

I  ought  in  justice  to  add,  however,  that  in  1850  Mr.  de  Lamartine  said,  in  his 
Counsellor  of  the  People,  that  he  was  now  for  two  houses,  and  that  he  had  been 
for  one  house  in  1S48  because  he  wanted  a  dictatorial  power  ;  and,  added  he,  La 
dictature  ne  se  divise  pas.  But  how  can  a  dictatorship  be  called  undivided, 
when  it  belongs  to  a  house  composed  of  eight  hundred  members?  And  must 
not,  in  the  nature  of  things,  a  division  of  execution  always  take  place?  It  is 
surprising  that  something  temporarily  desired  for  a  dictatorship  should  have  been 
insisted  upon  by  Mr.  Lamartine  with  so  much  vehemence  as  an  integral  part  of 
the  fundamental  law;  or  was  perciventure  the  constitution  of  1848  intended  not 
to  last? 


198 


ON  CIVIL  LIBERTY 


been  asserted.  This  effect  of  two  houses,  and  the  rules  of 
procedure  just  mentioned,  are  indeed  hke  so  many  pillars  to 
the  fabric  of  liberty. 

The  question  has  been  asked.  Why  should  there  be  two 
chambers  ?  What  philosophical  principle  is  there  enshrined 
in  this  number  ?  All  we  would  answer  is,  that  it  has  been 
found  that  more  than  one  house  is  necessary,  and  more  than 
two  is  too  many.  Three  and  even  four  houses  belong  to  the 
medieval  estates,  and  to  the  deputative,  not  to  the  modern 
national  representative,  system.  The  mischief  of  three  houses 
is  as  great  as  that  of  three  parties.  The  weakest  becomes  the 
deciding  one  by  a  casting  vote.  And  one  house  only  belongs 
to  centralization.  It  is  incompatible  with  a  government  of  a 
co-operative  or  concurrent  character,  which  we  hold  to  be  the 
government  of  freedom. 

I  cannot  agree  with  the  opinion  expressed  by  Lord  Broug- 
ham in  his  work  on  Political  Philosophy,  that  it  is  essentially 
necessary  that  the  composition  of  the  two  houses  should  be 
based  upon  entirely  different  principles,  meaning  that  the  one 
ought  not  to  be  elective,  and  that  it  ought  to  represent  entirely 
different  interests.  A  thorough  discussion  of  this  subject 
belongs  to  the  province  of  politics  proper,  but  I  ask  the  reader's 
indulgence  for  a  few  moments. 

If  the  two  houses  were  elected  for  the  same  period,  and  by 
the  same  electors,  they  would  amount  in  practice  to  little  more 
than  two  committees  of  the  same  house ;  but  we  want  two 
bona  fide  different  houses,  representing  the  impulse  as  well  as 
the  continuity,  the  progress  and  the  conservatism,  the  onward 
zeal  and  the  retentive  element,  innovation  and  adhesion,  which 
must  ever  form  integral  elements  of  all  civilization.  One  house, 
therefore,  ought  to  be  large ;  the  other,  comparatively  small, 
and  elected  or  appointed  for  a  longer  time.  Now,  as  to  the 
right  of  sitting  in  the  smaller  or  upper  house,  of  longer  dura- 
tion, there  are  different  modes  of  bestowing  it.  It  may  be 
hereditary,  as  the  English  peers  proper  are  hereditary ;  or  the 
members  may  have  seats  for  life  and  in  their  personal  capa- 
city, as  the  French  peers  had  under  the  charter.   This  is  prob 


\ 


AND  SELF-GOVERNMENT.  199 

ably  the  worst  of  all  these  methods.  It  gives  great  power  to 
the  crown,  and  keeps  the  house  of  peers  in  a  state  of  sub- 
mission, which  hereditary  peers  generally  do  not  know.  Or, 
again,  the  members  may  be  elected  for  life  by  a  class,  as 
Scottish  representative  peers  are  elected  by  the  Scottish  nobility 
for  the  British  house  of  peers  ;  or  the  members  may  be  simi- 
larly elected  for  one  parliament  alone,  as  the  Irish  peers  are 
that  sit  in  parliament ;  or  the  people  may  elect  senators  for 
life,  or  for  a  shorter  time,  as  the  senators  of  Belgium  and  all 
the  senators  in  our  states  are ;  or,  lastly,  the  members  of  the 
house  we  are  speaking  of  may  be  elected,  not  by  the  people 
in  their  primary  capacity,  but  by  different  bodies,  such  as  our 
senators  of  congress  are.  The  senators  of  the  United  States 
are  elected  by  the  states,  as  states ;  consequently  an  equal 
number  of  representing  senators  is  given  to  each  state,  irre- 
spective of  its  size  or  population. 

It  would  be  very  difficult  to  pronounce  the  one  or  the  other 
principle  absolutely  the  best,  without  reference  to  circum- 
stances, and  we  are  sure  that  Lord  Brougham  would  be  the 
last  man  that  would  maintain  the  absolute  necessity  of  having 
a  hereditary  peerage  wherever  two  houses  exist.  As  to  the 
different  classes,  or  interests,  however,  which  ought  to  be 
represented,  I  would  only  state  that  the  idea  belongs  to  the 
middle  ages,  and,  if  adopted,  would  lead  at  once  to  several 
estates  again.  It  is  hostile  to  the  idea  of  two  houses  only. 
Why  represent  the  different  interests  of  the  nation  in  two 
houses  ?  Are  there  not  more  broad,  national  interests  ?  It 
would  be  difficult  indeed  to  understand  why  the  land-owner 
in  present  England  should  have  his  house,  and  not  the  manu- 
facturer, the  merchant,  the  wide  educational  interest,  the 
sanitary  interest,  the  artisan,  the  literary  interest,  with  that  of 
jpurnalism.  The  excellence  of  the  bicameral  system  in  our 
representative  (and  not  deputative)  government  does  not  rest 
on  the  representation  of  different  interests,  but  on  the  different 
modes  of  composing  the  houses,  and  their  different  duration.' 


»  [Compare  the  defence  of  representation  and  protection  of  interests  by  Mr, 
Calho>-»i,  Works,  i.,  beginning.] 


200  ON  CIVIL  LIBERTY 

On  the  other  hand,  we  may  observe  that  when,  in  1848,  the 
French  estabhshed  a  legislature  of  one  house,  they  found 
themselves  obliged  to  establish,  by  the  constitution,  a  council 
of  state,  as  the  Athenians  established  the  council  (boule)  to  aid 
the  general  assembly  (ecclesia).  The  French  know,  instinct- 
ively if  not  otherwise,  that  a  single  house  of  French  repre- 
sentatives would  be  exposed  to  the  rashest  legislation.  The 
council  of  state,  however,  is  not  public,  the  members  are  ap- 
pointed by  the  executive  ;  in  one  word,  what  was  gained  ? 
Much  indeed  was  lost. 

Whether  the  representative  is  the  representative  of  his 
immediate  constituents  or  of  the  nation  at  large,  whether  he 
ought  to  obey  instructions  sent  him  by  his  constituents — on 
these  and  other  subjects  connected  with  them  I  have  treated 
at  great  length  in  my  Political  Ethics.  I  shall  simply  men- 
tion here  the  fact  that  civil  liberty  distinctly  requires  the 
representative  to  be  the  representative  of  his  political  society 
at  large,  and  not  of  his  election  district.  The  idea  that  he 
merely  represents  his  immediate  constituents  is  an  idea  which 
belongs  to  the  middle  ages  and  their  deputative  system, — not 
to  our  far  nobler  representative  system.  The  representative 
is  not  a  deputy  sent  with  simple  powers  of  attorney,  as  the 
deputy  of  the  middle  ages  was.' 

36.  I  hesitate  whether  I  ought  to  mention  the  Veto  as  an 
Anglican  guarantee  of  liberty.  I  hold  it  to  be  in  our  political 
system  a  check  upon  the  legislature,  and  therefore  a  protec- 
tion of  the  citizen  ;  one  that  can  be  abused,  and  probably  has 
been  abused ;  but  everything  intrusted  to  the  hands  of  man 
may  be  abused.  The  question  concerns  its  probable  average 
operation. 

Although  the  veto  is  thus  acknowledged  to  be  an  important 
part  of  our  polity,  it  may  be  said  no  longer  to  exist  in  England. 
It  has  been  mentioned  before,  that  should  parliament  pass  a 
bill  from  which  the  ministers  believe  the  royal  assent  ought  to 


'  [The  same  is  shown  ethically  by  the  consideration  that  the  constituents,  if 
collected,  would  be  bound  to  regard  the  general  welfare.  The  representative 
takes  their  duties  on  himself  with  their  power.] 


AND  SELF-GOVERNMENT.  20I 

be  withheld,  they  would  not,  according  to  the  present  usage, 
expose  the  king  to  an  open  disagreement  with  the  lords  and 
commons,  but  they  would  resign,  upon  which  an  administra- 
tion would  be  formed  which  would  agree  with  parliament ;  or 
parliament  would  be  dissolved,  and  an  "  appeal  to  the  country" 
would  be  made. 

Yet  we  have  received  the  veto  from  England ;  and  it  is  all 
these  considerations  which  make  me  hesitate,  as  I  said  before, 
to  call  the  veto  an  Anglican  guarantee. 

The  use  of  the  veto  can  become  very  galling,  and  at  such 
times  we  often  find  the  party,  whose  favorite  measure  has 
been  vetoed,  vehemently  attacking  the  principle  itself  It  was 
thus  that  the  whigs  in  the  United  States  earnestly  spoke  and 
wrote  against  the  principle,  when  General  Jackson  declined 
giving  his  assent  to  some  measures  they  considered  of  great 
importance,  and  the  democrats  were  loud  in  favor  of  the  veto 
power  because  it  had  been  used  by  a  president  of  their  own 
party. 

In  treating  this  whole  subject,  much  confusion  has  arisen 
from  the  ill-chosen  word  veto,  after  the  term  used  by  the 
Roman  tribune.  The  veto  of  the  Roman  tribune  and  the  so- 
called  modern  veto  are  not  the  same.  The  tribune  could  veto 
indeed.  When  a  law  was  passed  he  could  wholly  or  partially 
stop  its  operation,  by  the  tribunitial  aiixiliinn,  the  personal 
prevention  of  the  action  of  magistrates  in  particular  cases.  To 
this  was  added,  at  a  later  period,  the  intcrcessio,  by  which  the 
tribune  could  prevent  a  decree  of  the  senate  or  a  rogation  be- 
fore the  comitia  from  becoming  a  law.  The  dispensatory  power 
claimed  by  the  Stuarts  would  have  been  the  full  veto  power. 
The  chief  of  the  state  in  the  United  States  or  England,  how- 
ever, has  no  such  power.  The  law,  so  soon  as  it  is  law,  says 
to  every  one  :  Hands  off  What  we  call  the  veto  power  is  in 
reality  a  power  of  an  abnuent  character,  and  ought  to  have  been 
called  the  declinative.  But  this  declinative  is  possessed  in  a 
much  greater  degree  by  each  house  against  the  other.  To 
make  a  bill  a  law,  the  concurrence  of  three  parties  is  required 
— that  of  the  two  h'^uses  and  the  executive,  and  this  concur- 


202  ON   CIVIL   LIBERTY 

rence  may  be  withheld  as  a  matter  of  course,  otherwise  it 
would  not  be  concurrence. 

It  is  a  wise  provision  in  our  constitution  which  directs  that 
a  bill  not  having  received  the  president's  approval  neverthe- 
less passes  into  a  law  if  two-thirds  of  congress  adhere  to  the 
bill.  Many  of  our  state  constitutions  do  not  require  the  con- 
currence of  the  executive.  This  is  not  felt  in  many  cases  as 
an  evil,  because  the  action  of  the  states  is  limited ;  but  in  my 
opinion  it  would  be  an  evil  day  when  the  veto  should  be  taken 
from  the  President  of  the  United  States.  It  would  be  the 
beginning  of  a  state  of  things  such  as  we  daily  observe  with 
our  South  American  neighbors.  The  American  conditional 
veto  is  in  a  great  measure  a  conciliatory  principle  with  us,  as 
the  refusal  of  supplies  is  of  an  eminently  conciliatory  character 
in  the  British  polity.' 

The  only  case  in  which  our  executives  have  a  real  vetitive 
power  is  the  case  of  pardon,  and  most  unfortunately  it  is 
used  in  an  alarming  degree,  against  the  supremacy  of  the  law 
and  the  stability  of  right — both  essential  to  civil  liberty.  I 
consider  the  indiscriminate  pardoning,  so  frequent  in  many 
parts  of  the  United  States,  one  of  the  most  hostile  things, 
now  at  work  in  our  country,  to  a  perfect  government  of  law. 
In  the  only  case,  therefore,  in  which  we  have  a  full  veto  power, 
we  ought  greatly  to  modify  it.'^ 


'  [The  suspensive  veto  in  Norway,  which  three  successive  Storthings  by  a  ma- 
jority can  make  of  no  effect,  deserves  consideration,  as  avoiding  some  of  the  evils 
of  our  qualified  veto.] 

==  I  shall  append  a  paper  on  pardoning — a  subject  which  has  become  all-im- 
portant in  the  United  States. 


AND  SELF-GOVERNMENT.  203 


CHAPTER    XVII  I. 

INDEPENDENCE     OF     THE    JUDICIARY. THE    LAW      JUS,    COMMON 

LAW. 

37.  One  of  the  main  stays  of  civil  liberty,  and  quite  as  im- 
portant as  the  representative  principle,  is  that  of  which  the 
independence  of  the  judiciary  forms  a  part,  and  which  we  shall 
call  the  independence  or  the  freedom  of  the  law — of  jus  and 
justice.'  It  is  a  great  element  of  civil  liberty  and  part  of  a 
real  government  of  law,  which  in  its  totality  has  been  developed 
by  the  Anglican  tribe  alone.  It  is  this  portion  of  freemen 
only,  on  the  face  of  the  earth,  which  enjoys  it  in  its  entirety. 

In  the  present  case  I  do  not  take  the  term  law  in  the  sense 
in  which  it  was  used  when  we  treated  of  the  supremacy  of  the 
law.  I  apply  it  now  to  everything  that  may  be  said  to  belong 
to  the  wide  department  of  justice.  I  use  it  in  the  sense  in 
which  the  Anglican  lawyer  takes  it  when  he  says  that  an 
opinion,  or  decision,  or  act,  is  or  is  not  law,  or  good  law — an 
adaptation  of  the  word  peculiar  to  the  English  language.  It 
is  not  the  author's  fault  that  Law  must  be  taken  in  one  and 
the  same  essay,  in  which  philosophical  accuracy  may  be  ex- 
pected, in  two  different  meanings. 

The  word  law  has  obtained  this  peculiar  meaning  in  our 
language,  otherwise  so  discriminating  in  terms  appertaining 
to  politics  and  public  matters,  chiefly  for  two  reasons.  The 
first  is  the  serious  inconvenience  arising  from  the  fact  that 


'  The  lack  of  a  proper  word  for  j'ns,  in  the  English  language,  induced  me  to 
use  it  on  a  few  occasions  in  the  Political  Ethics.  The  Rev.  Dr.  W.  Whewell, 
some  years  later,  seems  to  have  felt  the  same  want,  adopting  in  his  work  on  the 
Elements  of  Morality,  including  Polity,  London,  1845,  the  word  jura/,  first  used 
in  the  Political  Ethics,  where  a  note  explains  why  I  was  compelled  to  form  the 
word. 


204  ^^  CIVIL  LIBERTY 

our  tongue  has  not  two  terms  for  the  two  very  distinct  ideas 
which  in  Latin  are  designated  by  Lex  and  Jus,  in  French  by 
Loi  and  Droit,  in  German  by  Gesetz  and  Recht;  the  second  is 
the  fact,  of  which  every  AngHcan  may  be  proud,  that  the 
EngHsh  jus  has  developed  itself  as  an  independent  organism, 
and  continues  to  do  so  with  undiminished  vitality.  It  is  based 
upon  a  common  law,  acknowledged  to  be  above  the  crown  in 
England,  and  to  be  the  broad  basis  of  all  our  own  constitu- 
tions— a  body  of  law  and  "  practice,"  in  the  administration 
of  justice,  which  has  never  been  deadened  by  the  superinduc- 
tion  of  a  foreign  and  closed  law,  as  was  the  case  with  the 
common  law  of  those  nations  that  received  the  civil  law  in  a 
body  as  authority  for  all  unsettled  cases.  The  superinduction 
of  the  Latin  language  extinguished,  in  a  manner  not  wholly 
dissimilar,  the  living  common  languages  of  many  tribes,  or 
dried  up  the  sources  of  expansive  and  formative  life  contained 
in  them. 

The  independence  of  the  judges  is  a  term  happily  of  old 
standing  with  all  political  philosophers  who  have  written  in 
our  language;  but  it  will  be  seen  that  the  independence  of  the 
judiciary,  by  which  is  meant  generally  a  position  of  the  judge 
independent  of  the  executive  or  legislative,  and  chiefly  his 
appointment  for  life,  or  immovability  by  the  executive,  and, 
frequently,  the  prohibition  of  a  decrease  or  increase  of  his 
salary  after  his  appointment  has  taken  place — that  this  inde 
pendence  of  the  judiciary  forms  but  a  part  of  what  I  have  been 
obliged  to  call  the  far  more  comprehensive  Independence  of 
the  Law.^ 

The  independence  of  the  law,  or  the  freedom  of  the  jus,  in 
the  fullest  and  widest  sense,  requires  a  living  common  law,  a 


'  When  therefore  I  published  a  small  work  on  this  subject,  during  my  visit  to 
Germany,  in  1 848,  I  called  it  Die  Unahhdngigkeit  der  Justiz  oder  die  Freiheit 
des  Rechts,  Heidelberg,  1848.  Literally  translated,  this  would  be  The  Inde- 
pendence of  Justice  and  Freedom  of  the  Law.  Justiz  in  German,  however, 
does  not  mean  the  virtue  justice,  but  the  administration  of  justice ;  and  Rechi 
means,  in  this  connection, 7W,  not  a  single/?^^,  but  the  body  of  rights  and  usages, 
laws  and  lega'  practice,  of  a  people. 


AND  SELF-GOVERNMENT.  205 

clear  division  of  the  judiciary  from  other  powers,  the  public 
accusatorial  process,  the  independence  of  the  judge,  the  trial 
by  jur}',  and  an  independent  position  of  the  advocate.  These 
subjects  will  be  treated  in  the  order  in  which  they  have  been 
enumerated  here. 

A  living  common  law  is,  as  has  been  indicated,  like  a  living 
common  language,  like  a  living  common  architecture,  like  a 
living  common  literature.  It  has  the  principle  of  its  own 
organic  vitality,  and  of  formative  as  well  as  assimilative  ex- 
pansion, within  itself  It  consists  in  the  customs  and  usages 
of  the  people,  the  decisions  which  have  been  made  accordingly 
in  the  course  of  administering  justice  itself,  the  principles 
which  reason  demands  and  practice  applies  to  ever-varying 
circumstances,  and  the  administration  of  justice  which  has 
developed  itself  gradually  and  steadily.  It  requires,  there- 
fore, self-interpretation  or  interpretation  by  the  judiciary  itself, 
the  principle  of  the  precedent  and  "  practice"  acknowledged 
as  of  an  authoritative  character,  and  not  merely  winked  at ; 
and,  in  general,  it  requires  the  non-interference  of  other 
branches  of  the  government  or  any  dictating  power.  The 
Roman  law  itself  consisted  of  these  elements,  and  was  devel- 
oped in  this  manner  so  long  as  it  was  a  living  thing. 

The  common  law  acknowledges  statute  or  enacted  law  in 
the  broadest  sense,  but  it  retains  its  own  vitality  even  with 
reference  to  the  lex  scripta  in  this,  that  it  decides  by  its  own 
organism  and  upon  its  own  principles  on  the  interpretation  of 
the  statute  when  applied  to  concrete  and  complex  cases.  All 
that  is  pronounced  in  human  language  requires  constant 
interpretation,  except  mathematics.'  Even  if  the  English  law 
should  be  codified,  as  at  this  moment  the  question  of  codifica- 
tion has  been  brought  before  parliament,  the  living  common 
law  would  lose  as  little  of  its  own  inherent  vigor  and  expan- 
siveness  as  it  has  lost  in  Massachusetts  or  New  York  by  the 


*  Hence  the  peculiar  power  and  the  peculiar  narrowness  of  the  branch.  I 
have  treated  of  this  subject,  and  the  unceasing  necessity'  of  interpretation,  at  the 
beginning  of  my  Principles  of  Interpretation  and  Construction  in  Law  and 
Politics,  Boston,  1839. 


2o6  ON  CIVIL  LIBERTY 

"  Revised  Statutes"  of  those  states.  The  difference  between 
such  a  code  in  England  and  the  codes  which  have  been  pro- 
mulgated on  the  continent  of  Europe  would  always  consist  in 
this,  that  the  English  digest  would  have  a  retrospective  char- 
acter. It  would  be  the  garnering  of  a  crop ;  but  the  living 
orchard  is  expected  to  bear  new  fruits,  while  it  was  the  pro- 
nounced intention  of  the  promulgators  of  continental  codices  to 
prevent  interpretation,  for  which  end  it  was  ordained  analogously 
to  the  rule  of  the  civil  law,  that  recourse  should  be  had  in  all 
doubtful  cases  to  the  legislator,  that  is,  to  the  emperor  or  king, 
or  to  the  officer  appointed  by  the  monarch  for  that  purpose.' 

Judge  Story  has  very  clearly  expressed  what  a  code,  with 
reference  to  the  English  law,  ought  to  be.     He  says :  "  Not- 


'  I  cannot  avoid  referring  again  to  my  work  on  the  Principles  of  Interpretation 
and  Construction  in  Law  and  Politics,  where  this  subject  is  repeatedly  treated 
of,  as  it  forms  one  of  vital  importance  in  all  law,  liberty,  politics,  and  self-govern- 
ment. I  have  given  there  instances  of  prohibited  commenting,  and  even  lec- 
turing, in  the  universities,  on  the  codes.  This  is  the  pervading  spirit  of  the  civil 
law  as  it  was  adopted  by  modern  nations.  It  is  a  necessary  and  combined  con- 
sequence of  the  principle  contained  in  the  Justinian  code  itself,  namely,  that  the 
emperor  is  the  executive,  legislator  and  all ;  that,  therefore,  no  self-development 
of  the  law,  such  as  had  indeed  produced  the  Roman  jus,  could  any  longer  be 
allowed ;  and  of  the  fact  that  the  Roman  law  was  adopted  as  a  finished  system 
Trom  abroad.  The  principle  of  non-interpretation  by  the  courts  prevails  for  the 
same  reasons  in  the  canon  law.     I  give  the  following  as  an  interesting  instance: 

The  bull  of  Pope  Pius  IV.,  26  January,  1564,  sanctioning  and  proclaiming  the 
canons  and  decrees  of  the  Council  of  Trent,  contains  also  the  prohibition  to 
publish  interpretations  and  dissertations  on  these  canons  and  decrees.  The  words 
of  the  bull,  which  correspond  exactly  to  the  authority  reserved  by  government 
concerning  the  understanding  of  the  law,  where  codes  have  been  introduced 
and  the  common  law  principle  is  not  acknowledged,  are  these: 

"Ad  vitandam  prseterea  perversionem  et  confusionem,  quse  oriri  posset,  si 
unicuique  liceret,  prout  ei  liberet,  in  decreta  Concilii  commentaries  et  interpreta- 
tiones  suas  edere,  Apostolica  auctoritate  inhibemus  omnibus — ne  quis  sine  auc- 
toritate  nostra  audeat  ullos  commentarios,  glossas,  admonitiones,  scholia,  ullumve 
interpretationis  genus  super  ipsius  Concilii  decretis,  quocunque  modo,  edere,  aut 
quidquam  quocunque  nomine,  etiam  sub  prsetexta  majoris  decretorum  corrobora- 
tiDnis,  aut  executionis,  aliove  qu^sito  colore,  statuere." 

The  papal  bull  goes  on  to  declare  that  if  there  be  any  obscurity  in  the  decrees 
the  doubter  shall  ascend  to  the  place  which  the  Lord  has  appointed,  viz.,  the 
apostolic  see,  and  that  the  pope  will  solve  the  doubts. 


A ND  SELF-  G  O  VERNMENT. 


207 


withstanding  all  that  is  said  to  the  contrary,  I  am  a  decided 
friend  to  codification,  so  as  to  fix  in  a  text  the  law  as  it  is,  and 
ought  to  be,  as  far  as  it  has  gone,  and  leave  new  cases  to 
furnish  new  doctrines  as  they  arise  and  reduce  these  again  at 
distant  intervals  into  the  text."' 

Locke,  on  the  other  hand,  expresses  the  view  which  is  almost 
always  taken  by  philosophers  who  stop  short  with"  theory  and 
do  not  add  the  necessary  considerations  of  the  statesman  and 
friend  of  practical  liberty,  when  he  proposed  the  following 
passage  in  the  constitution  he  drew  up  for  South  Carolina : 
"  Since  multiplicity  of  comments  as  well  as  of  laws  have  great 
inconvenience,  and  serve  only  to  obscure  and  perplex,  all 
manner  of  comments  and  expositions,  on  any  part  of  these 
fundamental  constitutions,  or  on  any  part  of  the  common  or 
statute  laws  of  Carolina,  are  absolutely  prohibited."^ 


'  Life  and  Letters  of  Judge  Story,  vol.  i.  p.  448.  The  necessity  of  proper 
codification  has  appeared  more  and  more  clearly  to  the  English  mind,  since  this 
work  was  first  published,  and  many  preparatory  steps  have  been  taken.  In  the 
month  of  August  Lord  Chancellor  Cranworth  presented  a  report  to  the  lords,  of 
which  he  said  that,  in  the  first  place,  a  list  had  been  prepared  of  all  the  statutes 
not  obsolete,  nor  for  temporary  and  local  but  for  general  purposes,  which  have 
been  passed  since  Magna  Charta.  The  number  is  16,000;  but,  taking  away 
5300  repealed  or  virtually  repealed,  a  number  besides  those  which  relate  to 
Scotland  or  Ireland  exclusively,  and  3900  which  the  commissioners  have  not 
determined  on,  there  remain,  say  2500  acts  for  consolidation  ;  and  these  have 
been  analyzed.  As  there  is  some  difference  of  opinion  as  to  the  best  mode  of 
consolidation,  specimens  on  different  principles  had  been  prepared;  and  one  of 
these,  a  digest  of  the  law  of  distress  for  rent,  was  in  the  report.  Mr.  Coode, 
he  says,  has  completed  a  digest  of  the  poor-laws.  What  Lord  Cranworth  then 
proposed  was  to  see  whether  the  whole  of  the  provisions  relating  to  one  subject 
might  not  be  put  into  one  statute.  Each  of  the  commissioners  had  been  re- 
quested to  take  a  subject  and  frame  a  scheme  of  consolidation  with  that  view. 

A  very  interesting  speech  on  this  and  cognate  topics  was  made  in  February, 
1856,  in  the  house  of  commons,  by  Mr.  Napier,  attorney-general  of  Ireland,  on 
the  introduction  of  his  motion  : 

"That,  in  the  opinion  of  this  house,  as  a  measure  of  administrative  refomi, 
provision  should  be  made  for  an  efficient  and  responsible  department  of  public 
justice,  with  a  view  to  secure  the  skilful  preparation  and  proper  structure  of 
parliamentary  bills,  and  promote  the  progressive  amendment  of  the  laws  of  the 
United  Kingdom." 

»  Locke's  Constitution  '"or  South  Carolina,  1669,  paragraph  80. 


2o8  ON  CIVIL  LIBERTY 

This  is  quite  as  strong  as  the  Bavarian  code  or  the  pope's 
decree,  mentioned  in  a  previous  note.  The  fact  is  simply 
this :  on  the  one  hand  analyzing  and  systematizing  are  at- 
tributes of  humanity,  and  development,  growth,  assimilation, 
and  adaptation  are  the  very  elements  of  life.  Man  has  to  lay 
out  his  road  between  the  two,  and  will,  naturally,  incline  more 
to  the  one  or  the  other  according  to  the  bias  of  his  mind  or 
the  general  course  of  reasoning  common  to  his  peculiar  science 
or  profession. 

If  interpretation,  which  takes  place  when  the  general  rule 
is  applied  to  a  real  case,  is  not  left  to  the  law  itself,  the 
law  ceases  to  have  its  own  life,  and  the  citizen  ceases  strictly 
to  live  under  the  law.  He  lives  under  the  dictating  or  inter- 
fering power,  because  each  practical  case,  that  is,  each  time 
that  the  rule  passes  over  from  an  abstraction  into  a  reality,  is 
subject  to  that  power,  be  it,  as  it  generally  is,  the  executive 
or  the  legislative.  This  does  not  exclude  what  is  called  au- 
thentic interpretation,  or  interpretation  by  the  legislature  itself, 
for  future  cases.  Accurately  speaking,  authentic  interpreta- 
tion is  no  interpretation,  but  rather  additional  legislation. 
We  would  distinctly  exclude,  however,  retrospective  authentic 
interpretation  ;  for  this  amounts,  indeed,  to  an  application  of 
the  law  by  the  legislature,  and  is  incompatible  with  a  true 
government  of  law.  It  is  obvious  that  the  same  holds  with 
reference  to  all  power,  whether  monarchical  or  popular.  The 
law  must  be  the  lord  and  our  "  earthly  god,"  and  not  a  man, 
a  set  of  men,  or  the  multitude. 

As  to  the  principle  of  the  precedent,  it  is  one  of  the  ele- 
ments of  all  development,  contradistinguished  from  dictation 
and  mere  command.  Everything  that  is  a  progressive  con- 
tinuum requires  the  precedent.  A  precedent  in  law  is  an  ascer- 
tained principle  applied  to  a  new  class  of  cases,  which  in  the 
variety  of  practical  life  has  offered  itself  It  rests  on  law  and 
reason,  which  is  law  itself  It  is  not  absolute.  It  does  not 
possess  binding  power  merely  as  a  fact,  or  as  an  occurrence. 
If  that  were  the  case,  Anaxarchus  would  have  been  right  in 
telling  Alexander  that  as  Dike  was  represented  as  seated  by 


AND  SELF-GOVERNMENT.  209 

the  side  of  Zeus  to  show  that  all  his  decrees  had  the  quality 
of  justice,  so  a  great  king's  doings  must  be  considered  to  be 
right  by  himself  and  by  other  men.'  Nor  is  a  precedent  un- 
changeable. It  can  be  overruled.  But,  again,  it  must  be  done 
by  the  law  itself,  and  that  which  upsets  the  precedent  cannot 
otherwise  than  become,  in  the  independent  life  of  the  law, 
precedent  in  turn.^ 

The  continental  lawyers  have  a  great  fear  of  the  precedent, 
but  they  forget  that  their  almost  worshipped  Roman  law  itself 
was  built  up  by  precedent.  Indeed,  they  do  not  comprehend 
the  nature  of  the  precedent,  its  origin,  and  its  power,  as  an 
element  of  a  free  jus.  They  frequently  point  to  the  fact  that 
the  most  tyrannical  acts  of  the  Stuarts  were  founded  upon 
real  or  presumed  precedents,  and  that  crown  lawyers  helped 
in  the  nefarious  work ;  but  they  forget  that  British  liberty  was 
also  rescued  from  despotism  in  a  great  measure  by  lawyers 
resting  on  the  common  law.  Nothing  gave  to  the  popular 
party  more  strength  than  the  precedent.  On  this  particular 
subject,  and  on  the  nature  of  the  precedent  and  the  distinction 
of  the  legal  from  the  executive  precedent,  as  well  as  the  emi- 
nent danger  of  regarding  a  mere  fact  as  a  precedent,  I  have 
fully  treated  in  two  other  works.3  The  present  work  does  not 
permit  me  to  enter  more  fully  on  the  subject,  or  to  repeat  what 
I  have  there  said.  A  truth  of  the  weightiest  importance  it 
remains,  that  liberty  and  steady  progression  require  the  prin- 
ciple of  the  precedent  in  all  spheres.  It  is  one  of  the  roots 
with  which  the  tree  of  liberty  fastens  in  the  soil  of  real  life, 
and  through  which  it  receives  the  sap  of  fresh  existence.  It 
is  the  weapon  by  which  interference  is  warded  off  The  prin- 
ciple of  the  precedent  is  eminently  philosophical.    The  English 


»  Arrian,  Anab.,  iv.  §  10,  7. 

2  Dr.  Greenleaf  published,  in  Portland,  Maine,  1821,  A  Collection  of  Cases 
Overruled,  Doubted,  or  Limited  in  their  Application,  taken  from  American  and 
English  Reports.  Several  subsequent  editions  have  been  published,  with  addi- 
tions, for  which  Dr.  Greenleaf,  however,  has  declared  himself  irresponsible. 

3  In  my  Ethics,  and  especially  in  my  Principles  of  Legal  and  Political  Inter- 
pretation and  Construction. 

14 


210  ON  CIVIL  LIBERTY 

constitution  would  not  have  developed  itself  without  it.  What 
is  called  the  English  constitution  consists  of  the  fundamentals 
of  the  British  polity  laid  down  in  custom,  precedent,  decisions, 
and  statutes;  and  the  common  law  in  it  is  a  far  greater  portion 
than  the  statute  law.  The  English  constitution  is  chiefly  a 
common  law  constitution,  and  this  reflex  of  a  continuous 
society  in  a  continuous  law  is  more  truly  "philosophical,"  than 
the  theoretic  and  systematic  but  lifeless  constitutions  of  recent 
France. 

Every  idea  has  its  caricature,  and  the  more  unfailingly  so 
the  more  actively  and  practically  the  idea  is  working  in  real 
life.  It  is,  therefore,  natural  that  we  should  meet  with  cari- 
catures of  the  precedent  especially  in  England,  as  the  English 
have  been  obliged  to  build  up  slowly  and  gradually  that  system 
of  liberty  and  the  independence  of  the  law,  which  we  have 
carried  over  to  this  country  in  a  body,  and  which  we  have 
farther  developed.  When  we  read  that  at  every  opening  of  a 
new  parliament  a  committee  of  the  commons  proceeds,  lan- 
tern in  hand,  to  the  cellar  under  the  house,  to  see  whether  no 
modern  Guy  Fawkes  has  collected  combustibles  there  for  the 
purpose  of  exploding  parliament,  because  the  thing  had  been 
done  under  James  I.,  we  must  acknowledge  the  procedure  more 
pitiful,  though  far  more  innocent,  than  Alexander's  dragging 
the  body  of  the  gallant  Batis  at  the  wheels  of  his  chariot, 
round  the  walls  of  Gaza,  in  order  to  follow  the  precedent  of 
his  progenitor  Achilles.  But  this  is  caricature,  and  it  is  un- 
philosophical  to  point  at  the  case  in  order  to  prove  the  futility 
or  mischief  of  the  precedent.  It  is  a  proper  subject  for  Punch 
to  exterminate  such  farces,  not  for  us  to  discuss  them,  any 
more  than  to  treat  seriously  the  French  publicist  who,  speak- 
ing of  the  intrigues  of  the  legitimists,  lately  said  that  the  elder 
Bourbons  should  remember  that  Louis  Napoleon  had  created 
for  himself  a  formidable  precedent,  in  the  spoliation  of  the 
Orleans  branch.  Nero's  fiddle  might  at  this  rate  legalize  the 
sentimental  burning  of  any  capital. 

The  precedent  has  been  called  judge-made  law,  and  as  such 
deprecated.     A  more   correct  term  would  be  court-evolved 


AND  SELF-GOVERNMENT.  211 

law.  If  the  precedent  is  bad,  let  it  be  overruled  by  all  means, 
or  let  the  legislature  regulate  the  matter  by  statute.  Bacon's 
dictum,  already  quoted,  that  the  worst  of  things  is  the  apo- 
theosis of  error,  applies  to  the  bad  precedent  as  forcibly  as  to 
any  other  error ;  but  the  difficulty  is  not  avoided  by  simply 
disavowing  the  precedent.  Some  one  must  decide.  Now,  is  it 
better  that  government  or  a  "minister  of  justice"  shall  lay 
down  a  rule  in  the  style  of  the  civil  law,  or  that  the  principle 
shall  be  decided  in  court  by  the  whole  organism  established 
to  give  reality  and  practical  life  to  justice,  and  in  the  natural 
course  of  things  ? 

Continental  jurists,  when  they  compare  the  civil  law  with  the 
common  law,  always  commit  this  error,  that  they  merely  com- 
pare the  contents  of  the  two  great  systems  of  law,  on  which  I 
shall  presently  say  a  few  words;  whilst  they  invariably  forget 
to  add  to  the  comparisons  this  difference,  that  the  civil  law, 
where  it  now  exists,  has  been  introduced  as  a  dead  and  foreign 
law  ;  it  is  a  matter  of  learned  study,  of  antiquity ;  whereas  the 
common  law  is  a  living,  vigorous  law  of  a  living  people.  It  is 
this  that  constitutes  more  than  half  its  excellence  ;  and  though 
we  should  have  brought  from  England  all  else,  our  liberty,  had 
we  adopted  the  civil  law,  would  have  had  a  very  precarious 
existence.  Judge  Story  relates  "as  perfectly  well  authenti- 
cated, that  President  (John)  Adams,  when  he  was  Vice-Presi- 
dent of  the  United  States,  and  Blount's  conspiracy  was  before 
the  senate,  and  the  question  whether  the  common  law  was  to 
be  adopted  was  discussed  before  that  body,  emphatically  ex- 
claimed, when  all  looked  at  him  for  his  opinion  as  that  of  a 
great  lawyer,  that  if  he  had  ever  imagined  that  the  common 
law  had  not  by  the  revolution  become  the  law  of  the  United 
States  under  the  new  government,  he  never  would  have  drawn 
his  sword  in  the  contest.  So  dear  to  him  were  the  great  privi- 
leges which  that  law  recognized  and  enforced."  ' 

A  common  law,  to  be  a  real  advantage  to  the  people,  must 
be  a  general  law,  and  the  judicial  organism  must  contain  that 


'  Page  299,  vol.  i.,  Life  and  Letters  of  Joseph  Story. 


212  ON  CIVIL  LIBERTY 

organic  arrangement  by  which  confusion  and  consequent  inse- 
curity are  prevented.  Without  it  the  common  law,  as  any  other 
system  of  law,  ceases  proportionately  to  be  a  protection  of  the 
citizen;  while  the  gradual  generalization  of  the  law,  in  the  re- 
spective countries  occupied  by  our  race,  as  well  as  the  steady 
extension  and  internal  growth  of  international  law,  forms  one  of 
the  most  important  topics  of  that  portion  of  our  history  which, 
for  want  of  better  terms,  may  be  called  the  nationalization  and 
uniformation  of  our  race,  in  governments,  languages,  litera- 
ture, and  law  systems. 

The  civil  law  excels  the  common  law  in  some  points.  Where 
the  relations  of  property  are  concerned,  it  reasons  clearly  and 
its  language  is  admirable ;  but  as  to  personal  rights,  the  free- 
dom of  the  citizen,  the  trial,  the  independence  of  the  law,  the 
principles  of  self-government,  and  the  supremacy  of  the  law, 
the  common  law  is  incomparably  superior.^ 

Nor  has  the  civil  law  remained  without  its  influence;  but  it 
nev^er  superseded  the  common  law.  The  common  law  remained 
a  living  system,  and  it  assimilated  to  itself  parts  of  the  civil 
law  as  it  assimilates  any  other  element.  For  instance.  Judge 
Story,  in  one  of  his  essays,  says :  "  The  doctrine  of  bailments, 
too,  was  almost  struck  out  at  a  single  heat  by  Lord  Holt,^  who 
had  the  good  sense  to  incorporate  into  the  English  code  that 


*  "  The  civil  law,  a  law  of  wisdom  biit  of  servitude ;  the  law  of  a  great  com- 
mercial empire,  digested  in  the  days  of  Justinian,  and  containing  all  the  principles 
of  justice  and  equity  suited  to  the  relations  of  men  in  society  with  each  other; 
but  a  law  under  which  the  head  of  government  was  '  Imperator  Augustus, 
legibus  solutus.'  " — John  Quincy  Adams,  seventh  President  of  the  United  States, 
in  a  letter  to  Judge  Story,  page  20,  vol.  ii.,  Life  and  Letters  of  Judge  Story. 

The  young  American  reader  is  recommended  to  peruse  a  letter  to  a  young 
friend,  by  Mr.  Legare,  first  published  in  the  National  Intelligencer,  in  which  he 
urges  the  study  of  the  civil  law  as  one  of  the  best  means  of  mental  legal 
training.  That  distinguished  advocate  told  the  author  that  whenever  he  was 
peculiarly  complimented  on  an  argument  in  civil  suits,  or  had  gained  a  very 
difficult  case,  he  could  trace  the  reason  to  his  having  thoroughly  studied  the  civil 
law  in  his  younger  days  in  Europe.  Mr.  Legare  also  wrote  an  extensive  article 
on  Roman  Law  and  Legislation  in  the  Southern  Review. 

»  The  case  of  Coggs  vs.  Bernard,  2d  ed.  Raym.  R.  909 — note  by  Judge  Story. 


AND  SELF-GOVERNMENT.  213 

system  which  the  text  and  the  commentaries  of  the  civil  law 
had  already  built  up  on  the  continent  of  Europe." ' 

The  common  law  is  all  the  time  expanding  and  improving. 
I  have  given  a  very  interesting  instance  of  this  fact,  in  the  law 
of  whalers,  which  has  developed  itself  among  the  hardy 
hunters  of  the  Pacific,^  and  has  been  acknowledged,  when  the 
proper  occasion  offered  itself,  in  the  courts  of  Massachusetts.^ 

The  idea  of  a  common  law,  with  its  own  inherent  vitality 
and  independence,  is,  as  a  matter  of  course,  wholly  disavowed 
by  those  who  follow  the  French  views,  and  who,  as  we  have 
seen,  strive  above  all  for  union  of  force,  and  who  consider  the 


•  Story's  Miscellaneous  Writings,  p.  224. 

=  In  a  similar,  though  in  a  far  less  interesting  way,  I  observe  that  a  whole 
code  has  established  itself  for  the  extensive  sale  of  books  at  auction  in  London. 
It  is  a  real  specimen  of  the  genius  of  one  part  of  common  law. 

3  See  article  Common  Law,  in  the  Encyclopaedia  Americana.  It  was  written, 
as  many  others  on  subjects  of  law,  by  my  lamented  friend,  Judge  Story.  An 
opportunity  has  never  offered  itself  to  me  publicly  to  acknowledge  the  great 
obligation  under  which  I  am  to  that  distinguished  jurist  for  the  assistance  he 
most  readily  and  cheerfully  gave  me  in  editing  the  Americana.  I  shall  never 
forget  the  offer  he  made  to  contribute  some  articles  Avhen  I  complained  of  my 
embarrassment  as  to  getting  proper  articles  on  the  main  subjects  of  law,  for  my 
work  intended  for  the  general  reader.  Many  of  them  were  sent  from  Washing- 
ton, while  he  was  fully  occupied  with  the  important  business  of  the  supreme 
court.  He  himself  made  out  the  list  of  articles  to  be  contributed  by  him,  and  I 
do  not  remember  ever  having  been  obliged  to  wait  for  one.  The  only  condition 
this  kind-hearted  man  made  was  that  I  should  not  publish  the  fact  that  he  had 
contributed  the  articles  in  the  work  until  some  period  subsequent  to  their  appear- 
ance. They  have  met  with  much  approbation,  and  I  hope  I  am  not  guilty  of 
indiscretion  if  I  state  here  that  another  friend,  a  distinguished  orator  and 
lawyer,  the  Hon.  William  C.  Preston,  has  repeatedly  expressed  his  admiration 
of  them. 

The  contributions  of  Judge  Story  to  the  Americana  "comprise  more  than  120 
pages,  closely  printed  in  double  columns.  But  a  higher  interest  than  that  grow- 
ing out  of  their  intrinsic  worth  belongs  to  them.  They  were  labors  dedicated 
purely  to  friendship,  and  illustrate  a  generosity  which  is  as  beautiful  as  it  is  rare." 
To  these  words,  copied  from  p.  27,  vol.  ii.  of  Life  and  Letters  of  Joseph  Story, 
where  a  list  of  all  his  contributions  may  be  found,  I  may  add  that  Judge  Story 
made  his  offer  at  a  time  when  he  to  whom  it  was  made  was  known  to  very  few 
persons  in  this  country,  and  had  but  lately  arrived  here ;  and  that  Judge  Story 
took  at  once  the  liveliest  and  most  active  interest  in  the  whole  enterprise,  and 
contributed  much  to  cheer  on  the  stranger  in  his  arduous  task. 


214 


ON  CIVIL  LIBERTY 


essence  of  democracy  to  consist  in  absolute  equality  concen- 
trated in  absolute  dominion,  whether  of  the  majority,  or  of  one 
to  whom  the  majority  has  transferred  the  absolute  power — the 
democratic  Caesar.  Those  American  writers,  therefore,  who 
take  this  Gallican  or  Rousseau's  view  of  democracy,  share  with 
the  French  this  hostility  to  the  common  law.  It  was  rifest  at 
the  time  of  the  French  revolution,  since  which  time  I  believe 
it  may  be  affirmed  that  it  has  greatly  subsided.  Yet  it  sub- 
sists still,  and  is  occasionally  uttered  with  an  energy  which 
surprises  those  who  believe  that  the  severest  lesson  taught  by 
the  first  half  of  the  nineteenth  century  is,  perhaps,  that  abso- 
lute democracy  has  no  connection  with  liberty.' 


*  Theory  of  Politics :  An  Inquii-y  into  the  Foundations  of  Governments,  and 
the  Causes  and  Progress  of  Political  Revolutions.  By  Richard  Hildreth,  author 
of  "  The  History  of  the  United  States  of  America,"  etc.;  New  York,  1853.  In 
this  work  the  reader  will  find  the  opinion  maintained  that  the  pi-actical  working 
of  a  democratic  government  in  our  own  country  is  obstructed  by  several  disturb- 
ing causes,  of  which  the  greatest  is  the  common  law — "  a  scheme  directly  hostile 
to  the  spirit  of  democracy,"  and  therefore,  "under  an  enlightened  democratical 
government,  entirely  out  of  place." 


AND  SELF-GOVERNMENT.  215 


CHAPTER   XIX. 

INDEPENDENCE  OF  JUS,  SELF-DEVELOPMENT  OF  LAW,  CONTINUED. 

— ACCUSATORIAL  AND   INQUISITORIAL  TRIALS. INDEPENDENCE 

OF   THE  JUDGE. 

38.  The  practice  or  usage  of  the  administration  of  justice 
belongs  of  right  to  the  development  of  that  administration 
itself, — avowedly  so,  and  not  merely  by  indulgence  or  con- 
nivance.' 

In  countries  in  which  this  important  principle  is  not  acknowl- 
edged, certain  changes,  produced  by  "  practice,"  were  and  are, 
nevertheless,  winked  at,  and  happily  so,  because  legislation  has 
neglected  to  make  the  necessary  changes,  and  humanity  will 
not  be  outraged.  Thus,  in  German  countries,  practice  had 
abolished  the  application  of  the  torture  and  fearful  punish- 
ments, demanded  by  positive  law,  long  before  they  were  abol- 
ished by  law.  But  it  was  an  exception  only  demanded  by 
common  sense  and  by  a  general  feeling  of  humanity. 

The  common  law  of  the  Anglican  race,  however,  assigns 
the  right  of  development  to  the  courts.  It  is  part  and  parcel 
of  the  common  law.  Innumerable  instances,  and  of  almost 
daily  occurrence,  might  be  given. 

The  following  instance  is  given  here  simply  because  the 
writer  happens  to  think  of  it,  and  because  it  seems  to  be  an 
apt  illustration. 

When  a  court  is  directed  to  sit  two  weeks,  and  a  jury,  being 
summoned  to  act  for  the  first  week  of  the  term,  and  having 


»  Lord  Mansfield,  in  a  note  to  a  Scottish  judge  who  had  asked  his  advice  as 
to  the  introduction  of  trial  by  jury  in  civil  cases  into  Scotland,  has  this  remark: 
"  Great  alterations  in  the  course  of  the  administration  of  justice  ought  to  be 
sparingly  made  and  by  degrees,  and  rather  by  the  court  than  by  the  legislature." 
Lord  Campbell's  Chief  Justices  of  England,  vol.  ii.  p.  554. 


2i6  ON  CIVIL  LIBERTY 

retired  to  consider  their  verdict  before  midnight  of  Saturday, 
in  the  first  week,  return  into  court  after  midnight,  and  before 
daylight  of  Sunday,  shall  or  shall  not  their  verdict  be  received 
and  published  ?  Shall  it  be  rejected  on  the  ground  that  Sun- 
day is  a  dies  nonjuridicus  ?  This  question  was  lately  decided 
in  South  Carolina,  not  by  applying  for  information  to  a  "  minis- 
ter of  justice,"  or  "  the  emperor,"  as  the  civil  law  directs,  but 
by  itself,  upon  the  principle  of  vital  self-sufficiency,  by  inquiry 
into  its  own  principles,  and  an  examination  of  precedents  in 
the  whole  range  of  English  law,  and  of  statute  laws,  if  there 
were  any  exactly  applying  to  the  case  under  consideration/ 

This  principle  of  self-development  is  important  likewise  with 
reference  to  a  clear  division  of  the  judiciary  from  other  branches 
of  the  public  power.  The  law  is  not  independent,  and  conse- 
quently the  citizen  not  free,  where  aught  else  than  the  admin- 
istration of  justice  belongs  to  the  court,  and  where  anything 
that  belongs  to  the  administration  of  justice  is  decided  by  any 
one  but  the  courts ;  where  things  are  decided  by  aught  else 
than  the  natural  course  of  law,  and  where,  as  has  been  stated, 
interpretation  or  application  belongs  to  any  one  else  than  to 
the  judiciary.^  Hence  there  ought  to  be  no  pressure  from 
without,  either  by  a  Stuart  sending  for  the  judges  to  tamper 
with  them,  or  to  ask  them  how  they  would  decide  a  certain 
case  if  brought  before  them,  or  by  a  multitude  assuming  the 
name  of  the  people.  No  judge  ought  to  give  his  opinion  be- 
fore the  practical  case  has  come  on  and  been  discussed  accord- 


»  The  learned  "  opinion"  of  the  court  of  errors  was  delivered  by  Judge  Ward- 
law,  Hiller  vs.  English,  4  Strobhart's  Reports,  Columbia,  S.  C,  1850.  While  I 
was  writing  this,  the  supreme  court  of  Massachusetts  decided  that  the  "  squeeze 
of  the  hand"  of  a  dying  person,  unable  to  speak,  but  having  been  made  aware  of 
the  fact  that  the  pressure  would  be  taken  as  an  affirmative,  may  be  taken  as  "  a 
dying  declaration,"  though  with  caution. — N'ational  Intelligencer,  Washington, 
May  21,  1853. 

»  Even  the  Constitution  of  the  French  Republic  of  1848  said,  article  89 : 
"  Conflicts  of  privileges  and  duties  between  the  administrative  and  judicial  au- 
thority shall  be  regulated  by  a  special  tribunal  composed  of  members  of  the  court 
of  cassation  and  of  counsellors  of  state,  to  be  appointed,  every  three  years,  in 
equal  number,  by  the  respective  bodies  to  which  they  belong.  This  tribunal 
shall  be  presided  over  by  the  minister  of  justice." 


AA'D  SELF-GOVERNMENT.  217 

ing  to  law,  either  to  monarch,  poHtical  party,  or  suitor.  He 
is  an  integral  part  of  the  law,  but  only  a  part,  which  must  not 
be  disconnected  from  the  law.  There  must  not  be  what  are 
called  in  France  jtigeinents  administratifs ,  nor  any  extraordi- 
nary or  exceptional  courts,  as  has  been  mentioned;  no  judg- 
ments by  extraordinary  commissions,  nor  any  decisions  by  the 
executive  regarding  the  application  of  the  law.  The  following 
instance  is  here  given,  not  because  the  case  is  of  itself  important, 
but  because  it  exhibits  the  principle  with  perfect  clearness,  and 
because  it  refers  to  a  royal  proclamation — an  executive  act. 
The  English  government  had  published  in  1852  a  proclamation 
against  the  public  appearance  of  Roman  Catholics  in  their  re- 
lig-ious  vestments;  and  the  well-known  Father  Newman  asked 
the  secretary  for  the  home  department  whether  this  royal 
proclamation  must  be  considered  as  directed  also  against  the 
wearing  of  "cassocks  and  cloaks"  in  the  streets  of  Birming- 
ham, where  the  Roman  Catholics  had  been  in  the  habit  of  ap- 
pearing thus,  "under  legal  advice,"  for  full  four  years.  The 
answer  of  secretary  Walpole,  one  of  the  ministers,  was  this : 

"  I  am  to  inform  you,  that  her  majesty's  proclamation  is 
directed  against  all  violations  of  the  26th  section  of  the  statute 
1 0th  George  IV.  c.  7,  and  that  if  you  feel  any  difficulty  in 
the  construction  of  the  enactment,  your  proper  course  will  be 
to  consult  your  legal  adviser.  The  secretary  of  state  would 
not  be  justified  in  pronouncing  an  opinion  on  the  question 
submitted  to  him ;  for  if  any  doubt  exists  on  the  point,  the 
decision  of  it  must  rest  with  the  courts  of  law,  and  not  with 
the  government."  ' 

There  is  no  country  except  ours  and  England  where  a  simi- 
lar answer  would,  or  indeed  could,  have  been  given.  Every- 
where else  it  would  have  been  called  a  destruction  of  the  prin- 
ciple of  unity  in  the  government.  We  call  it  a  small  but  choice 
cabinet  specimen  of  a  most  noble  principle,  forming  an  element 
of  our  very  politics.  Nor  must  it  be  forgotten  that  it  was  a 
tory  government  which  made  this  exclusively  Anglican  reply. 


«  The  letter  is  dated  June  24,  1852. — London  Spectator,  July  3,  1852. 


2i8  ON  CIVIL  LIBERTY 

The  reader  will  remember  the  directly  opposite  principle  de- 
clared in  the  bull  of  Pope  Pius  IV.,  quoted  before,  as  well  as 
Locke's  provision  in  his  constitution  of  South  Carolina. 

39.  The  public  accusatorial'  trial  is  another  element  of  the 
independence  of  the  law,  as  it  is  one  of  the  efficient  protections 
of  the  citizen.  By  accusatorial  process  is  understood  here,  not 
what  is  generally  understood  by  the  term  of  trial  by  accusation, 
(that  is,  individual  accusation,)^  but  that  penal  trial  which 
places  the  court  wholly  above  the  two  parties  in  criminal  mat- 
ters, as  the  judge  is  everywhere  placed,  at  least  theoretically 
so,  in  civil  cases ;  although  the  two  parties  be  the  prosecuting 
state  or  government  on  the  one  hand,  and  the  indicted  person 
on  the  other.  The  accusatorial  trial  is  thus  contradistinguished 
from  the  inquisitorial  trial,  which  came  into  use  through  the 
canon  law,  and  especially  through  the  unhallowed  witch-trials. 
In  it,  the  judge  inquires,  investigates,  in  one  word,  is  the  pros- 
ecuting party  as  well  as  the  judging,  and  in  some  cases  he  is 
even  expected  to  be  likewise  the  protecting  party  of  the  in- 
dicted prisoner,  thus  uniting  a  triad  of  functions  within  himself 
which  amounts  to  a  psychological  incongruity.^ 

It  maybe  said  that  the  public  accusatorial  trial  has  prevailed 
or  been  aimed  at  by  all  free  nations,  modern  and  ancient.  We, 
the  English,  the  Netherlanders,  the  Norwegians,  the  Swedes, 
the  French  since   the  first  revolution,'*  the  Germans  in  the 


'  The  trial  by  accusation  has  a  distinct  meaning  in  the  English  law ;  still,  I 
have  adopted  the  term  Accusatorial  Trial,  in  conformity  to  continental  lawyers. 
A  distinct  term  in  contradistinction  to  the  Inquisitorial  Trial  is  necessary,  and  I 
prefer  Accusatorial  to  Litigious  Trial,  which  I  observe  Mr.  Stephen  uses  in  an 
interesting  paper  on  English  Criminal  Law  in  the  collection  of  articles  published 
from  time  to  time  by  former  students  of  the  two  English  universities,  Oxford  and 
Cambridge,  respectively. 

'  There  was  no  public  prosecutor  in  Rome.  An  individual  appeared  as  ac- 
cuser, and  formed  throughout  the  trial  the  prosecuting  party.  See  article  Crim- 
inal Law,  in  the  Encyclopaedia  Americana. 

3  See  Feuerbach  on  the  Jury. 

*  Under  the  present  absolutism,  the  trial  is  of  course  at  the  mercy  of  the  ex- 
ecutive, if  the  government  has  any  interest  in  the  matter;  that  is,  punishments 
are  inflicted  without  trial,  and  certain  offences  are  punished  summarily,  although 
punishable  with  severe  visitation  of  the  law. 


AND  SELF-  G O  VERXMENT. 


219 


earlier  times,  the  Greeks  and  Romans — all  have  or  had  it,  but 
it  has  nowhere  been  carried  out  with  that  consistency  which 
we  find  in  the  Anglican  penal  trial. 

The  penal  trial  or  procedure  is  quite  as  important  as  the 
criminal  law  itself,  and  with  reference  to  protection,  to  liberty, 
to  a  pervading  consciousness  of  manly  rights,  it  is  even  more  so. 
This  is  the  chief  reason  which  explains  why  the  English,  the 
freest  nation  of  Europe,  endured  so  long  one  of  the  worst  and 
most  unphilosophical  bodies  of  criminal  laws — so  sanguinary 
in  its  character  that  the  monstrosity  came  to  pass,  of  calling 
all  punishments  not  capital,  secondary  punishments,  as  if  dt.ath 
were  the  current  penal  coin,  and  the  rest  of  punishments  merely 
the  copper  to  make  small  "  change."  The  English  public  ac- 
cusatorial process,  since  the  expulsion  of  the  Stuarts,  contained 
great  guarantees  of  public  security,  even  while  those  deficien- 
cies yet  existed  which  have  been  remedied  of  late,  thauks  to 
Sir  Samuel  Romilly  and  Sir  Robert  Peel.  For  a  long  time 
the  English  judge  was  the  short  bridge  of  fairness,  such  as  even 
that  was  in  earlier  times,  between  the  cruel  treatment  of  pris- 
oners before  and  after  the  trial,  for  it  was  only  in  1774  that, 
at  the  earnest  solicitation  of  Howard,  parliament  passed  an  act 
according  to  which  jailers  should  be  paid  from  public  funds, 
and  not,  as  theretofore,  by  fees  of  the  prisoners,  so  that  per- 
sons found  not  guilty  should  no  longer  be  returned  to  prison, 
there  to  be  kept  until  they  could  pay  the  jailer.' 

We  consider  that  the  accusatorial  procedure,  carried  out  with 
consistency  and  good  faith,  requires  that  the  accusation  itself 
be  not  made  by  the  executive,  but  upon  information,  by  whom- 
soever made,  through  an  act,  which  itself  includes  a  guarantee 
against  frivolous  or  oppressive  accusation  ;  for,  as  has  been 
stated,  trial  itself,  though  followed  by  acquittal,  is  a  hardship. 
Hence  the  importance  of  a  grand  jury.  The  Constitution  of 
the  United  States  ordains  that  "  no  person  shall  be  held  to 


'  Such  fearful  inconsistencies  are  almost  bewildering;  but  ^Yoe  to  the  penally 
indicted,  was  the  word  of  the  law  on  the  whole  continent.  There  are  similarly 
glaring  and  cruel  inconsistencies  still  existing  in  our  proud  race. 


220  ON  CIVIL  LIBERTY 

answer  for  a  capital  or  otherwise  infamous  crime  unless  on  a 
presentment  or  indictment  of  a  grand  jury."  The  French  penal 
trial  contains  no  such  guarantee,  but  it  has  passed  over  into  the 
fundamental  laws  of  all  our  states.  It  is  farther  necessaiy 
that  the  whole  trial  be  bona  fide  public  and  remain  bona  fide 
accusatorial.  Hence  there  ought  to  be  no  secret  examina- 
tions of  the  prisoner  by  the  public  prosecutor  before  the  trial, 
the  results  of  which  are  to  be  used  at  the  trial,  as  this  actually 
forms  part  of  the  French  penal  trial.  On  the  other  hand,  the 
judge  should  remain,  during  the  trial,  mere  judge,  and  never 
become  inquirer  or  part  of  the  prosecution,  as  this  likewise  is 
the  case  in  France.  Nor  must  the  prisoner  be  asked  to  in- 
criminate himself  All  this  belongs  to  the  inquisitorial  trial. 
The  indictment  must  be  clear,  and  the  prosecuting  officer  must 
not  be  allowed  to  influence  the  jury  by  an  address  before  the 
witnesses  are  examined,  nor  be  allowed  to  bring  in  irrelevant 
matter.  Lastly,  full  scope  must  be  given  to  counsel  for  the 
prisoner.  In  all  these  details  most  of  the  accusatorial  trials, 
except  the  Anglican,  are  more  or  less,  and  some  sadly,  deficient. 

40.  The  independence  of  the  law  or  administration  of  justice 
requires  the  independence  of  the  judge.  All  the  guarantees 
we  have  mentioned  support  the  judge  in  his  independence, 
and  are  requisite  for  it.  He  cannot  be  so  without  a  distinct 
separation  of  the  judiciary  from  the  other  branches  of  the 
government,  without  a  living,  self-sustaining  jus,  or  without 
the  accusatorial  procedure.     But  nfore  is  necessary. 

The  appointment,  the  duration  in  office,  and  the  removal, 
must  be  so  that  the  judge  feels  no  dependence  upon  any  one 
or  anything,  except  the  law  itself  This  ought  to  be  the  case 
at  least  in  as  high  a  degree  as  it  is  possible  for  human  wisdom 
to  make  it,  or  for  human  frailty  to  carry  out.'  Where  there 
is  a  pervading  publicity  in  the  political  life,  an  independent 
bar  and  self-sustaining  jus  and  administration  of  justice,  with 
responsible  ministers  of  the  executive  or  a  responsible  chief 
magistrate,  carefully  limited  in  his  power,  there  is  probably  as 


See  "  Fcdefalist,"  No.  Ixxviii.  and  sequ. 


AND  SELF-GO  VERNMEXT.  221 

little  danger  of  having  bad  judges,  in  giving  the  appointing 
power  to  the  executive,  especially  if,  as  is  the  case  with  us,  the 
senate  must  confirm  the  appointment,  as  in  any  other  mode  of 
appointing — indeed,  far  less  danger  than  in  those  other  modes 
which  so  far  have  been  adopted  in  most  of  our  states.  Where 
peculiar  fitness,  peculiar  skill  and  learning,  and  peculiar  apti- 
tude are  requisite,  it  is  for  many  psychological  reasons  best 
to  throw  the  responsibility  of  appointing  on  a  few  or  one,  so 
that  it  be  concentrated,  provided  these  few  or  the  one  are  ijiade 
to  feel  by  a  proper  organization  that  they  are  responsible  to 
the  public.  It  is  unwise  to  give  such  appointments  to  irre- 
sponsible bodies,  or  to  numerous  bodies,  which,  according  to 
the  universal  deception  of  a  divided  responsibility,  are  not  apt 
to  feel  the  requisite  pressure  of  responsibility,  and  necessarily 
must  act  by  groups  or  parties.  If  it  be  done,  that  hallowed 
character,  a  wise  and  upright  judge — a  type  of  humanity  which 
antiquity  and  modern  times,  paganism,  Mahometanism,  the  Old 
and  New  Testaments,  and  the  most  revered  passages  of  civil 
histor}^,  have  ever  held  as  one  of  the  highest  and  most  worthy 
— soon  fades  away  in  the  forgetfulness  of  one  of  the  most  im- 
portant elements  of  all  that  is  right,  honorable,  and  civilized.^ 


•  Hard  as  the  task  of  recording  tlie  foHowing  occurrence  may  be,  it  is  better 
that  the  distemper  be  known,  so  that  its  cure  may  become  possible.  In  the  year 
1857,  after  the  Police  Law  had  long  been  resisted  by  the  mayor  of  the  city  of 
New  York,  and  after  the  supreme  court  of  the  state  had  declared  it  constitu- 
tional, a  convention  of  one  of  the  largest  parties  was  held  in  that  slate,  in  order 
to  nominate  proper  candidates  for  the  various  offices  to  be  filled  by  the  approach- 
ing election.  When  the  judge  of  the  supreme  court,  who  belonged  to  the  same 
party,  and  who,  on  the  bench,  had  decided  for  the  constitutionality  of  the  Police 
Law,  came  to  be  nominated,  the  nomination  was  opposed  by  the  person  who 
had  been  mayor  of  New  York,  in  a  public  speech,  on  the  avowed  ground  that 
judges  had  been  made  elective  by  the  party,  although  he  himself  had  been 
adverse  to  it;  that  therefore  the  judges  had  been  drawn  into  the  sphere  of  party 
politics.  The  party  had  voted  against  the  Police  Law,  and  the  judge  had  de- 
clared it  constitutional,  therefore  he  ought  not  to  be  nominated  for  re-election. 
The  worst  of  the  Stuarts  never  said  anything  worse  concerning  judges,  and  the 
painful  account  has  been  given  here  to  show  to  the  younger  students  of  this  work 
how  fearfully  rapid  the  decline  of  national  sentiment  is.  Not  more  than  ten 
years  ago,  such    sentiments,  publicly  avowed,  would    have  created   universal 


222 


ON  CIVIL  LIBERTY 


Laws  ought  to  be  the  result  of  mutually  modifying  com- 
promise ;  many  appointments  ought  not.  Election  in  such 
cases  by  a  large  body  would  lead  to  few  efficient  and  truly 
serviceable  ambassadors,  and  it  has  long  been  settled  by  that 
nation  which  probably  knows  most  about  efficient  appoint- 
ment of  university  professors,  the  Germans,  that  their  appoint- 
ment by  election,  either  by  a  numerous  corporation  or  by  the 
professors  of  a  university  themselves,  ought  to  be  discarded.^ 

If  the  appointment  of  judges  ought  not  to  be  vested  in  legis- 
latures, far  less  ought  the  people  at  large  to  burden  them- 
selves with  the  election  of  judges.  The  election  of  judges  by 
the  people  themselves,  which  has  now  been  established  in 
many  of  the  United  States,  is  founded,  in  my  opinion,  on  a 
radical  error — the  confusion  of  mistaking  popular  power  alone 
for  liberty,  and  the  idea  that  the  more  the  one  is  increased,  in 
so  much  a  higher  degree  will  the  other  be  enjoyed.  As  if  all 
power,  no  matter  what  name  be  given  to  it,  if  it  sways  as 
power  alone,  were  not  absolutism,  and  had  not  the  inherent 
tendency,  natural  to  all  power  whatever,  to  increase  in  absorb- 
ing strength  !  All  despotic  governments,  whether  the  abso- 
lutism rests  with  an  individual  or  the  people,  (meaning  of 
course  the  majority,)  strive  to  make  the  judiciary  dependent 
upon  themselves.  Louis  XIV.  did  it.  Napoleon  did  it,  and 
ev^er}-'  absolute  democracy  has  done  it.    All  essential,  practical 


abhorrence.  May  my  younger  readers  remember  that  the  curses  pronounced  on 
unjust  judges  extend  to  those  who  appoint  judges  known  to  be  unjust,  or  adopt 
a  system  which  must  make  them  so;  be  they  monarchs  or  the  people — execra- 
tions and  blessings  make  no  distinction  between  them.  That  judges  ought  to 
judge  by  the  law  alone,  has  been  often  felt  even  by  absolute  monarchs.  Frederic 
II.  of  Prussia  wrote  a  letter  to  the  supreme  court  of  his  kingdom,  enjoining  the 
members  to  be  faithful  to  their  oath,  and  to  do  justice  in  spite  of  royal  demand. 
The  court  ordered  the  letter  to  be  framed  and  hung  up  in  its  hall.  Louis  XII. 
of  France,  in  his  edict  of  1499,  concerning  the  parliaments  or  high  courts  of 
justice,  ordained  that  the  law  should  always  be  followed,  in  spite  of  royal  orders, 
which,  as  the  ordinance  says,  importunity  may  have  wrung  from  the  monarch. 

'  The  remarks  of  that  wise  philosopher,  Sir  William  Hamilton,  on  the  elec- 
tion of  professors,  in  his  minor  works,  apply,  so  far  as  I  remember  them  now, 
•with  equal  force,  and  probably  even  with  greater  strength,  to  the  election  of 
judges. 


A  ND  SEL  F-CO  VERNMENT. 


223 


liberty,  like  all  sterling  law  itself,  loves  the  light  of  common 
sense  and  plain  experience.  All  absolutism,  if  indeed  we 
except  the  mere  brutal  despotism  of  the  sword,  which  despises 
every  question  of  right,  loves  mysticism — the  mysticism  of 
some  divine  right.  The  monarchical  absolutists  wrap  them- 
selves in  it,  and  the  popular  absolutists  do  the  same.  But 
there  is  no  mystery  about  the  word  People.  People  means  an 
aggregate  of  individuals  to  each  of  whom  we  deny  any  divine 
right,  and  to  each  of  whom — I,  you,  and  every  one  included — 
we  justly  ascribe  frailties,  failings,  and  the  possibility  of  sub- 
ordinating our  judgment  and  virtue  to  passion  and  vice.  Each 
one  of  them  separately  stands  in  need  of  moderating  and  pro- 
tecting laws  and  constitutions,  and  all  of  them  unitedly  as 
much  as  the  individual.  Where  the  people  are  the  first  and 
chiefest  source  of  all  power,  as  is  the  case  with  us,  the  electing 
of  judges,  and  especially  their  election  for  a  limited  time,  is 
nothing  less  than  an  invasion  of  the  necessary  division  of 
power,  and  the  submission  of  the  judiciary  to  the  influence  of 
the  power-holder.  It  is  therefore  a  diminution  of  liberty,  for 
it  is  of  the  last  importance  to  place  the  judge  between  the 
chief  power  and  the  party,  and  to  protect  him  as  the  inde- 
pendent, not  indeed  as  the  despotic,  organ  of  the  law. 

It  has  been  repeated  by  some  who,  not  long  ago,  urged  an 
elective  judiciary,  that  an  independent  judiciary  may  be  neces- 
sary in  order  to  stand  between  the  crown  and  the  people,  but 
that  these  two  parties  do  not  exist  with  us,  and  that  therefore 
the  judges  ought  to  be  dependent  on  the  people,  whose  simple 
servants  they  are.  Not  to  mention  that  the  word  people  is 
used  in  this  fallacious  argument,  as  it  is  often  in  other  cases, 
for  a  mysterious  unit  which  exists  nowhere,  it  may  suffice  to 
say  that  the  English  judge  does  not  stand  between  the  crown 
and  the  people.  The  crown,  opposite  the  people,  is  sufficiently 
weak.  The  English  judge  stands  between  the  crown  and  the 
accused  individual,  while  with  us  the  judge  stands  between  the 
people  and  the  individual,  which  creates  a  far  greater  difficulty. 
To  resist  the  crown  is  considered  patriotic,  heroic ;  to  resist 
the  people  (and  frequently,  nay,  in  most  excited  cases,  this 


224 


ON  CIVIL  LIBERTY 


means  only  a  loud  or  impassioned  portion  of  them)  is  con- 
sidered unpatriotic,  mean,  and  even  treasonable. 

An  independent  judiciary  is  one  of  the  most  indispensable 
elements  of  self-government,  for  self-government  always  im- 
plies mutual  restraint.  It  is  one  of  the  wisest  acts  in  a  per- 
fectly free  people  to  establish  the  highest  possible  degree  of 
judicial  independence,  while  they  only  act  as  all  common 
power  acts,  if  they  wish  to  retain  absolute  power.^ 

Those  of  our  states  which  have  of  late  given  the  appoint- 
ment of  judges  to  popular  elections,  labor  under  a  surprising 
inconsistency;  for  all  those  states,  I  believe,  exclude  judges 
from  the  legislature.  They  fear  "political  judges,"  yet  make 
them  elective.  Now,  everything  electional  within  the  state 
becomes  necessarily,  in  time,  political.  If  the  physician  of  a 
hospital,  the  captain  of  a  vessel,  or  the  watchmaker  to  repair 
our  timepieces,  were  elected  by  the  people,  they  would,  to  a 
certainty,  in  most  cases,  be  elected  not  according  to  their 
medical,  nautical,  or  horological  skill  and  trustworthiness,  but 
on  political  grounds.  There  is  nothing  reproachful  in  this  to 
the  people  at  large.  It  is  the  natural  course  of  things.  Even 
members  of  the  French  Academy  have  been  elected  on  polit- 
ical grounds,  when  the  government  has  taken  a  deep  interest 
in  the  election. 

The  question  whether  judges  ought  to  sit  in  the  house  of 
commons  was  recently  before  parliament.^  There  are  many 
English  authorities  on  the  American  side  of  the  question,  at 
least  so  far  as  the  house  of  commons  is  concerned.  Lords 
Brougham  and  Langdale,  Sir  Samuel  Romilly  and  Mr.  Curran, 
may  be  mentioned  as  such.  On  the  other  hand,  ]\Ir.  Bentham. 
was    of  opinion  that  there  was  so  little  legislative  talent    in 


'  In  1774  parliament  passed  an  act  making  the  justices  of  the  supreme  court  of 
Massachusetts  independent  of  the  people  for  their  salaries.  The  grand  jurors 
refused  to  serve.     Paul  Revere  was  one  of  the  grand  jury. 

»  See  Mr.  Macaulay's  speech  in  the  commons,  June  i,  1853,  on  a  bill  to  ex- 
clude judges  from  the  house  of  commons.  The  chief  question  was  to  exclude 
the  vice-chancellor  from  a  seat  in  the  commons.  Mr.  Macaulay  is  decidedly  in 
favor  of  letting  judges  sit  in  the  commons. 


AND  SELF-GOVERNMENT.  225 

the  world  that  no  place  fits  so  well  for  legislative  business  as 
the  bench,  and  that  it  was  suicidal  to  exclude  the  judges. 
The  questions  we  have  to  answer  are  these :  Does  experience 
teach  us  that  judges,  having  a  seat  in  the  legislature,  where 
they  needs  must  belong  to  one  or  the  other  party,  allow  them- 
selves to  be  influenced  on  the  bench  ?  In  England,  there  are 
striking  instances  that,  in  modern  times,  they  may  resist  their 
own  political  bias,  in  Eldon,  Thurlow,  Mansfield,  and  Hard- 
wicke.  But  this  remark  extends  to  common  cases  only.  Were 
they,  or  would  they  have  been,  utterly  unbiased  in  all  those 
trials  that  may  be  called  political  ?  The  pervading  character 
of  self-government  and  independence  of  the  law  has  certainly 
given  to  the  English  bench  a  traditional  independence.  But 
how  long  has  this  existed,  and  what  times  may  not  possibly 
recur  ?  It  appears,  throughout  the  Life  and  Correspondence 
of  Justice  Story,  that  so  soon  as  he  was  elevated  to  the  bench 
he  not  only  avoided  being  mixed  up  with  politics  in  any  de- 
gree whatsoever,  but  even  the  mere  semblance  of  it.  He 
seems  to  have  been  peculiarly  scrupulous  on  this  point. 

The  second  question  we  must  answer  is  this  :  How  does  the 
judge  get  into  the  legislature?  Can  he  do  so  without  elec- 
tioneering? The  more  popular  a  representative  government 
is,  the  more  necessary  the  immediate  contact  between  the 
candidate  and  the  constituents  becomes.  And  who  wishes  to 
see  the  judge,  that  ought  to  be  the  independent  oracle  of  the 
law,  in  this  position  ? 

Mr.  Bentham's  observation  regarding  the  general  unfitness 
of  the  world  at  large  for  legislative  business,  and  the  peculiar 
fitness  of  judges  for  it,  requires  also  some  modification.  How 
is  it  with  sanitary  laws  ?  Few  physicians  sit  in  legislatures, 
and  those  that  have  a  seat  are  not  placed  there  because  they 
are  at  the  head  of  their  profession.  We  must  necessarily  trust 
to  the  general  influence  under  which  a  legislature  legislates. 
As  to  the  fitting  of  the  bench  for  legislative  business,  it  is  un- 
doubtedly true  with  regard  to  a  large  class  of  that  business  ;  but 
we  must  not  forget  that  the  judge  is  and  ought  to  be  a  peculiar 
representative  of  conservatism ;  which  nevertheless  unfits  him, 

15 


226  ON   CIVIL    LIBERTY 

in  a  measure,  for  all  that  business  which  is  of  a  peculiarly  pro- 
gressiv'e  character.  Almost  all  law  reforms  have  originally 
been  resisted  by  the  bench.  It  is  not  in  all  cases  to  be  re- 
gretted. The  judges  are  the  brakes  which  prevent  the  vehicle 
from  descending  too  fast  on  an  inclined  plane ;  but  the  retard- 
ing force  must  be  overcome  in  many  cases,  however  serviceable 
it  may  be  that  the  action  of  overcoming  the  difficulty  may  have 
been  modified  by  the  very  process. 

I  cannot  help  believing,  then,  that  upon  the  whole  judges 
ought  to  be  excluded  from  the  legislature ;  they  certainly 
ought  to  be  so  with  us.  To  allow  them  a  seat  in  concentrated 
governments,  as  in  France,  would  be  calamitous.  But  this 
reason  is,  a  fortiori,  one  why  judges  ought  not  to  be  elected 
by  the  people. 

We  are  frequently  asked  whether  the  elective  judiciary 
works  badly.  The  answer  is,  that  a  ball  rolls  awhile  from 
the  first  impulse  given  to  it.  So  far,  old  judges  have  generally 
been  elected  under  the  new  system  ;  and  we  would  ask,  on  the 
other  hand  :  Has  the  former  system  worked  badly  ?  I  believe, 
then,  that  elective  judges  are  a  departure  from  substantial 
civil  liberty,  because  it  is  a  departure  from  the  all-important 
independence  of  the  law. 

The  foregoing  paragraph  was  written  in  1853  ;  and  I  have 
now  to  add,  in  1859,  that  a  judiciary  elected  by  the  people 
seems  to  be,  universally  and  unqualifiedly,  considered  a  serious 
failure.  I  state  this,  conscientiously  to  record  facts  concerning 
so  important  a  topic.  The  most  attentive  observation,  exten- 
sive perusal  of  public  journals,  consultation  of  lawyers  and 
statesmen,  have  not  brought  to  my  knowledge  a  single  opinion 
in  favor  of  an  elective  judiciary.  Everywhere  it  seems  to  be 
acknowledged  that  it  was  introduced  into  our  constitutions  from 
no  dissatisfaction  with  the  existing  system  or  with  the  judges, 
but  simply  to  satisfy  the  desire  of  increasing  the  power  of  the 
power-holder — to  be  subservient  to  the  sovereign;  that  in 
reality  it  does  not  increase  the  power  of  the  people,  since  per- 
sons, if  appointed  by  popular  vote,  are  nominated  by  a  small 
number  of  so-called  leading  politicians,  and  the  people  at  large 


A  ND  SELF-  C  O  VERNMENT. 


227 


can  discuss  the  matter  as  little  as  the  ecclesia  in  the  agora  could 
discuss;  that  the  confidence  of  the  people  in  the  judiciary  has 
been  lessened,  and  through  it  the  confidence  even  in  the  jury 
system ;  that  if  a  possible  increase  of  salary  is  believed  to  be 
capable  of  influencing  the  judges,  for  which  reason  it  is  pro- 
hibited by  all  our  constitutions,  it  follows,  a  fortiori,  that  a  re- 
election by  the  people,  or  the  losing  it,  must  influence  the  judge 
far  more;  that  instances  of  want  of  independence  have  occurred 
in  various  states,  and  the  lack  of  independence  has  especially 
and  sadly  interfered  with  our  penal  trials  and  the  salutary 
operation  of  the  law ;  that  it  has  in  many  cases  elevated  indi- 
viduals to  the  bench  who  had  no  standing  among  their  fellow 
lawyers,  and  whom  no  governor  would  have  dared  to  appoint, 
feeling  his  responsibility  as  a  trustee,  while  the  electing  people 
are  irresponsible,  and  that  in  several  states  it  has  actually  oc- 
curred that  candidates  for  judicial  seats  have  been  asked  in 
the  public  journals  how  they  mean  to  decide  if  certain  questions 
[e.g.,  the  constitutionality  of  the  New  York  liquor  law)  should 
come  before  them,  in  the  same  way  in  which  certain  political 
questions  are  put  to  candidates  for  the  legislature.' 

It  is  necessary  to  appoint  judges  for  a  long  period,  and  the 
best  is  probably  for  life,  with  a  proper  provision  which  prevents 
incapacity  from  old  age.^  The  experience  which  is  required, 
and  the  authority  he  must  have,  although  unsupported  by  any 
material  power,  make  this  equally  desirable,  as  well  as  the  fact 
that  the  best  legal  talents  cannot  be  obtained  for  the  bench  if 
the  tenure  amounts  to  a  mere  interruption  of  the  business  of 
the  lawyer.3     The  constitution  of  the  French  republic  of  1848, 


»  The  report  of  the  Reform  Committee  of  the  New  York  legislature  reveals  a 
state  of  things  which  reminds  us  of  the  worst  state  of  Athens,  while  the  Louisiana 
papers  copied  the  most  important  portions,  with  strengthening  commentaries  and 
illustrations  from  their  state.  Numerous  individuals,  judges,  and  lawyers  have 
publicly  expressed  their  disapprobation.  We  trust  so  great  an  evil  will  soon  be 
redressed. 

»  See  Political  Ethics,  under  the  heads  of  Judge,  Independence  of  the  Judi- 
ciary. 

3  I  would  refer  the  reader,  on  all  these  subjects,  to  Judge  Chambers's  Speech 
on   the  Judicial  Tenure,  in  the  Maiyland  Convention,  Baltimore,  1851.     [The 


2  28  <^-'^'   CIVIL   LIBERTY 

SO  democratic  in  its  character,  decreed  the  tenure  of  judicial 
office  to  be  for  Hfe.^ 

It  is  for  a  similar  reason  of  public  importance  that  the  salary 
of  the  judges  be  liberal,  which  means  that,  combined  with  the 
honor  attached  to  a  seat  on  the  bench,  it  be  capable  of  com- 
manding the  fairest  legal  talents.  The  judge  must  enjoy,  as 
has  been  stated,  proper  independence  ;  but  he  is  dependent,  and 
in  the  worst  degree  so,  if  he  is  conscious  that  the  best,  lawyers 
before  him  are  superior  to  him  in  talent,  experience,  learning, 
and  character.  None  but  such  inferior  men  can  be  obtained 
for  an  illiberal  salary,  according  to  the  universal  law  that  the 
laborer  is  worthy  of  his  hire,  and  that  he  will  seek  to  obtain 
this  hire  in  the  great  market  of  labor  and  talent.  Even  the 
common  consideration  that  every  private  individual  expects 
that  his  affairs  will  be  served  best  by  an  efficient  clerk  for  a 
liberal  hire,  and  not  by  a  poorly-paid  hireling  whose  incapacity 
can  command  no  higher  wages,  should  induce  us  to  pay  judges, 
as  indeed  every  one  who  must  be  paid,  and  is  worthy  of  being 
paid  at  all,  with  a  liberality  which  equally  avoids  lavishness 
and  penury.  Liberal  salaries  are  essential  to  a  popular 
government. 

To  make  judges  independent  or  remove  from  them  the  pos- 
sible suspicion  of  dependence,  it  has  been  ordered  in  the  Con- 
stitution of  the  United  States  that  the  "judges  of  the  supreme 
and  inferior  courts  shall  hold  their  offices  durinij  cjood  be- 
havior,  and  shall  at  stated  times  receive  for  their  services  a 
compensation  which  shall  not  be  diminished  during  their  con- 
tinuance in  office."  This  principle  has  been  adopted  in  most, 
if  not  in  all  our  constitutions ;  many  have  added  that  it  shall 
not  be  increased  either,  during  continuance  in  office.*     But 


evils  pointed  out  by  Dr.  Lieber  ave  admitted  and  deprecated  by  niultitiulcs,  Init 
hitherto  there  are  no  steps  backward.  In  New  York,  the  state  which  has  suffered 
most  from  a  judiciary  elected  by  the  people  and  on  party  grounds,  a  vigorous 
effort  has  lately  (1873)  been  made  to  change  the  mode  of  election,  without  suc- 
cess. Perhaps  if  the  whole  bar  of  a  state  was  united  and  strong  in  desiring  such 
a  change  it  could  be  effected.] 

'  This  constitution  will  be  found  in  the  Appendix. 

»  When,  it  has  become  necessary  to  increase  the  salary  of  judges,  the  difficulty 


AND  SELF-GOVERNMENT.  229 

what  is  the  possible  dependence  feared  from  an  increase  or 
decrease  of  salary,  compared  to  that  unavoidable  dependence 
which  must  be  the  consequence  of  short  terms  of  office,  and 
of  appointment  by  election  ?  It  will  hardly  be  necessary  to 
mention  that  a  fixed  salary,  independent  of  fees  and  fines,  is 
indispensable  for  the  independence  of  the  judge  and  the  pro- 
tection of  the  citizen.  Even  common  decency  requires  it. 
Don  Miguel  of  Portugal  made  the  judges  who  tried  political 
offenders  depend  upon  part  of  the  fines  and  confiscations  they 
decreed ;  and  we  know  what  was  done  under  James  II.  and 
Lord  Jeffreys.  The  hounds  receiving  part  of  the  hunted  game 
suggest  themselves  at  once. 

With  a  view  of  making  the  judiciary  independent,  the 
removal  of  judges  from  office  has  been  justly  taken  out  of  the 
hands  of  the  executive.  The  immovability  of  judges  is  an 
essential  element  of  civil  liberty.  Neither  the  executive  nor 
the  soverj  Ln  himself  ought  to  have  the  power  of  removing  a 
judge.  He  can  therefore  be  removed  by  impeachment  only, 
md  this  requires,  according  to  the  Constitution  of  the  United 
States,  two-thirds  of  the  votes  of  the  senate.  In  some  states 
they  can  be  removed  by  two-thirds  of  the  whole  legislature.^ 

Although  the  principle  of  arbitration  cannot  be  called  a 
characteristic  of  liberty,  for  as  a  characteristic  it  belongs  rather 
to  the  patriarchal  government,  and  courts  of  arbitration  may 
flourish  in  despotic  states,  it  will  be  necessary  to  consider  this 
topic  in  the  present  place.  It  is  very  possible  that  our  people 
would  more  readily  give  up  an  elective  judiciary,  where  it  has 
been  established,  if  the  law  or  the  state  constitutions  directed 
or  admitted  of  regular  courts  of  arbitration.  Wherever  they 
have  been  tried  in  modern  times,  they  have  been  found  of  the 
greatest  benefit  to   the  people,  for  instance,   in   Prussia  and 


has  sometimes  been  avoided  by  the  judges  resigning,  upon  the  understanding 
that,  after  the  legislature  shall  have  increased  the  salary,  they  should  be  re- 
appointed. 

'  It  seems  to  me  a  strange  anomaly  that,  as  it  would  seem  by  a  late  resolution 
of  the  United  States  senate,  the  president  has  authority  to  remove  judges  in  the 
"territories." 


2-.0  ON  CIVIL  LIBERTY 

Denmark.  Great  efforts  are  made  in  England,  by  such  lead- 
ing men  as  Lord  Brougham,  to  introduce  them  in  that  country 
of  law.  In  England  as  well  as  in  the  United  States  the  law 
admits  indeed  of  arbitration,  but  a  single  arbitration,  though 
acknowledged  by  law  if  certain  prescribed  conditions  have 
been  fulfilled,  differs  in  effect,  and  the  advantage  resulting  from 
it,  from  a  court  of  arbitration. 

Where  these  courts  now  exist,  the  following  are,  I  believe, 
their  characteristics  : 

The  country  is  divided  into  certain  arbitration  districts,  in 
each  of  which  the  people  elect  several  judges  of  arbitration,  so 
that  the  people  may  have  a  choice,  because  the  whole  business 
transacted  by  them  is  an  affair  of  confidence ; 

Parties  must  agree  to  go  to  arbitration,  and  select  the 
judge ; 

They  must  commence  business  by  handing  in  a  written 
declaration  that  they  will  abide  by  the  decision  of  the  judge, 
without  any  appeal,  and  the  decision  of  the  judge  has  full 
force  in  all  courts  ; 

Going  to  arbitration  is  a  purely  voluntary  matter; 

Parties  must  state  their  own  cases,  and  no  pleaders  for  others, 
no  lawyers,  are  admitted ; 

There  is  no  jury  ; 

The  arbitration  extends  to  civil  cases  only,  as  a  matter  of 
course ; 

The  judges  of  arbitration  are  elected  for  a  limited  time  ; 

The  judge  decides  on  the  common  principles  of  fairness; 

Great  care  is  taken  to  establish,  as  the  first  step,  that  the 
parties  come  into  court,  truly  and  verily,  of  their  own  accord 
and  free  will. 

The  chief  objections  to  Lord  Brougham's  repeated  propo- 
sitions to  introduce  courts  of  arbitration  have  been  made  by 
professional  lawyers,  namely,  that  parties  ignorant  of  their  full 
rights  would  expose  themselves  to  great  losses.  The  statistics 
of  those  countries  where  these  peculiar  courts  exist  seem  to 
prove  the  contrary.  The  number  of  cases  decided  by  them 
has  been  increasing  from  year  to  year,  and  is  now,  as  well  as 


AND   SELF-GOVERNMENT.  23 1 

the  amount  of  property  upon  which  they  have  decided, 
surprisingly  large.  Cases  in  which  the  disputed  property 
amounted  to  several  hundred  thousand  dollars  have  been  taken 
before  these  courts,  and  it  has  repeatedly  happened,  in  Prussia, 
that  in  a  suit  before  the  regular  courts  of  law  the  settlement 
of  portions  of  the  suit  has  been  taken,  by  common  consent, 
to  arbitration,  and  the  suit  at  law  has  proceeded  with  the  de- 
cision of  the  court  of  arbitration.  It  is  remarkable  that  the 
amount  of  property  at  stake,  thus  taken  out  of  the  court  of 
law  to  the  court  of  arbitration,  has  sometimes  been  very  large. 

The  establishment  of  courts  of  arbitration  has  produced  a 
signal  decrease  of  litigation  and  diminution  of  expenses. 

Finally,  it  may  be  observed  that  the  fundamental  idea  of 
courts  of  arbitration  somewhat  resembles,  in  one  point,  the 
principle  upon  which,  originally  at  least,'  the  house  of  lords 
decided  as  the  last  court  of  appeal, — a  principle  which  many 
of  our  states  had  imitated,  by  giving  the  last  appeal  to  the  state 
senates,  and  which,  so  far  as  my  inquiry  has  led  me  to  con- 
clude, produced  beneficial  results.  The  introduction  of  courts 
of  arbitration,  along  with  the  abolition  of  elective  judges,  and 
especially  of  judges  elected  for  a  short  term,  would  produce 
the  best  effects  in  our  country.^ 


»  At  present,  when  the  house  of  lords  sits  as  a  court  of  appeal,  none  but  the 
law  lords  are  generally  present. 

*  In  some  manufacturing  districts  on  the  continent  of  Europe,  for  instance  in 
Rhenish  Prussia,  so  called  Manufactory  Courts  exist.  They  consist  of  elected 
employers  and  employed,  and  judge  of  all  the  minor  difficulties  which  may  arise 
between  the  employers  and  the  employed  out  of  their  immediate  relation  to  one 
another.  The  common  question,  for  instance,  whether  the  woven  piece,  returned 
by  the  weaver,  contains  all  the  material  given  to  him,  or  whether  it  be  returned 
in  a  perfect  state,  is  adjudged  by  them.  General  satisfaction  seems  to  prevail 
with  these  courts,  whose  German  name  is  Fabrik-Gerichte.  [Courts  or  councils 
somewhat  like  these  have  been  introduced  also  into  Great  Britain.] 


232  OiY  CIVIL  LIBERTY 


CHAPTER   XX. 

INDEPENDENCE    OF   JUS,    CONTINUED. TRIAL    BY   JURY. THIi 

ADVOCATE. 

41.  The  judge  cannot  occupy  a  sufficiently  independent 
position  between  the  parties  by  the  accusatorial  proceeding 
alone.  If  there  is  not  what  may  be  called  a  division  of  the 
judicial  labor,  separating  the  finding  of  guilt  or  innocence,  or 
of  the  facts,  from  the  presiding  over  the  whole  trial  and  the 
application  as  well  as  the  pronouncing  and  expounding  of  the 
law,  the  judge  must  still  be  exposed  to  taking  sides  in  the  trial. 
This  division  of  judicial  labor  is  obtained  by  the  institution  of 
the  jury.  This,  it  seems  to  me,  is  one  of  the  most  essential 
advantages  of  this  comprehensive,  self-grown  institution.  It 
is  likewise  a  guarantee  of  liberty  in  giving  the  people  a  parti- 
cipation in  the  administration  of  justice,  without  the  ruin  and 
horrors  of  an  administration  of  justice  by  a  multitude,  as  it 
was  in  Athens.  The  jury  is  moreover  the  best  school  of  the 
citizen,  both  for  teaching  him  his  rights  and  how  to  protect 
them,  and  for  practically  teaching  him  the  necessity  of  law  and 
government.  The  jury,  in  this  respect,  is  eminently  conserva- 
tive. In  this,  as  in  many  other  respects,  it  is  necessary  that 
the  institution  of  the  jury  exist  for  the  civil  trial  as  well  as  for 
the  penal,  and  not,  as  in  many  countries,  for  the  latter  only. 
The  necessity  of  the  jury  does  not  militate  against  the  arbi- 
tration courts,  which  have  proved,  as  has  been  stated,  a  great 
blessing  in  all  countries  in  which  they  have  been  properly 
established,  or  against  certain  courts  of  minor  importance 
which  may  be  advantageously  conducted  without  a  jury.'' 


*  For  the  history  of  this  institution  in  general,  the  reader  is  referred  to  William 
Forsyth,  History  of  the  Trial  by  Jury,  London,  1852. 


A  AD  SELF-  G  O  VERNMENT. 


233 


The  results  of  trial  by  jury  have  occasionally  been  such  that 
even  in  England  and  here,  voices  have  been  raised  against  it. 
Men  feel  the  existing  evil  only ;  they  do  not  see  those  evils 
that  would  result  a  hundredfold  from  an  opposite  state  of 
things.  Nor  are  those,  who  feel  irritated  at  some  results  of 
the  trial  by  jury,  acquainted  with  the  operation  of  trials  with- 
out jury.  So  is  occasionally  the  publicity  of  trials  highly 
inconvenient ;  yet  should  we  desire  secret  trials  ?  Liberty,  as 
we  conceive  it,  can  no  more  exist  without  the  trial  by  jury — 
that  "  buttress  of  liberty,"  as  Chatham  called  it,'  and  as  our 
ancestors  worshipped  it — than  without  the  representative  sys 
tern.  But  we  must  remember  that  in  all  spheres  the  exception 
is  patent ;  the  continuous  operation  of  the  rule  is  latent.^ 

The  Declaration  of  Independence  specifies,  as  one  of  the 
reasons  why  this  country  was  justified  iii  severing  itself  from 
the  mother-country,  that  Americans  have  been  "  deprived  in 
many  cases  of  the  benefits  of  trial  by  jury." 

It  may  not  be  improper  here  to  enumerate  briefly  all  the 
advantages  of  so  great  an  institution,  whether  they  are  directly 
connected  with  liberty  or  not. 


'  Lord  Erskine,  when  he  was  raised  to  the  peerage,  adopted  the  \\ords  Trial 
by  Jury,  as  the  scroll  of  his  coat  of  arms. 

'  The  laxity  now  unfortunately  so  common  in  the  administration  and  execu- 
tion of  the  laws ;  the  crying  evil  that  in  our  large  cities  numerous  idlers,  of  a 
low  character,  make  their  living,  during  court  time,  by  being  ready  to  serve  as 
jurymen  when  called  upon,  of  which  they  are  now  very  sure,  owing  to  the 
facility  with  which  judges  excuse  citizens  from  serving ;  the  frequency  of  non- 
agreement  and  consequent  new  trials ;  the  length  to  which  the  doctrine  is  qirried 
that  juries  are  judges  of  law  as  well  as  fact ;  and  many  other  things,  have  induced 
several  persons  loudly  to  call  for  the  abolition  of  the  jury.  They  do  not  seem 
to  know  much  of  history,  or  they  would  know  that  courts  without  juries  are  not 
exempt  from  falling  into  abuses  or  from  becoming  actual  nuisances.  Let  us 
imagine  our  present  elective  judges  without  jury :  would  that  mend  matters?  The 
opposite  is  hardly  ever  the  cure  of  an  evil.  A  glutton  would  not  take  the  right 
step  of  amendment  by  the  resolution  of  starving  himself  to  death.  Our  jury 
trials  exhibit  many  deplorable  facts,  in  the  present  lime,  owing  to  the  general 
spirit  of  disorder;  but  the  administration  of  justice,  it  would  seem,  suffers  far 
more  from  want  of  energy  in  the  judges.  Let  us  fervently  hope  that  the  recu- 
perative power  which  has  been  shown  by  modern  nations,  and  by  modern  nations 
alone,  will  manifest  itself  also  with  us.  At  any  rate,  no  good  is  done,  when  the 
bWd  of  state  is  in  danger,  by  cutting  away  the  very  ribs  of  the  ship. 


234 


ON  CIVIL  LIBERTY 


The  trial  by  jury,  then,  if  properly  and  intelligently  ad- 
ministered, divides  the  labor  of  the  administration  of  justice, 
and  permits  each  part  quietly  to  find  the  truth  in  the  sphere 
assigned  to  it ; 

It  allows  the  judge  to  stand,  as  the  independent  organ  of 
the  law,  not  only  above  the  parties,  hostilely  arraigned  against 
each  other,  but  also  above  the  whole  practical  case  before  the 
court ; 

It  enables  plain,  common,  and  practical  sense  properly  to 
admix  itself  with  keen  professional  and  scientific  distinction, 
in  each  single  case,  and  thus  prevents  the  effect  of  that  dispo- 
sition to  sacrifice  reality  to  attenuated  theory,  to  which  every 
individual  is  liable  in  his  own  profession  and  peculiar  pursuit — 
the  worship  of  the  means,  forgetting  the  end;^ 


'  And  this  is  the  reason  that  nearly  all  great  reforms  have  worked  their  way 
from  without,  and  from  the  non-professional  to  the  professional,  or  from  below 
upward. 

I  beg  to  arrest  the  reader's  attention  for  a  moment  on  this  topic. 

In  all  civilized  countries  it  is  acknowledged  that  there  are  some  important 
cases,  which  on  the  one  hand  it  is  necessary  to  decide,  for  Mine  and  Thine  are 
involved,  and  which,  on  the  other  hand,  are  not  of  a  character  that  the  lines  of 
demarcation  can  be  drawn  with  absolute  distinctness,  in  a  manner  which  would 
make  it  easy  to  apply  the  law;  e.g.,  the  cases  which  i-elate  to  the  imitation  of  a 
part  of  a  work  of  art,  of  a  pattern,  or  the  question  of  a  bona  fide  extract  from  «n 
author's  work,  which,  according  to  the  Prussian  copyright  law,  was  decided  by 
a  jury  of  "  experts,"  long  before  the  general  introduction  of  the  jury  in  that 
country.  A  similar  case  is  presented  when  an  officer  is  accused  of  unofficer-like 
and  ungentlemanly  conduct.  Now  the  question  becomes:  Are  not  these  cases 
far  more  frequent  than  it  is  supposed  in  the  countries  where  the  trial  by  jury 
does  not  exist  ?  Are  not  almost  all  complex  cases  such  as  require  in  a  high 
degree  strong  common  sense,  the  tact  of  practical  life,  together  with  the  law,  in 
order  to  be  justly  decided?  Are  not  perhaps  the  greater  part  of  civil  cases  such? 
The  English  and  Americans  seem  to  believe  they  are.  They  believe  that  close 
logical  reasoning  is  indeed  necessaiy  in  the  application  of  the  law,  and  they 
assign  this  to  the  law-officers,  but  they  believe  also  that  a  high  degree  of  plain 
good  common  sense,  unshackled  by  technicalities,  is  necessary  to  decide  whether, 
"  upon  the  whole,"  "  taken  all  in  all,"  the  individual  case  in  hand  is  such  as  to 
bring  it  within  the  province  of  the  specific  law,  with  reference  to  which  it  is 
brought  before  the  court,  and  they  assign  this  part  of  the  trial  to  the  jury,  that 
is,  to  non-professional  citizens.  The  English,  and  the  people  of  some  American 
states,  do  not  only  follow  this  view  in  the  first  stage  of  a  case,  but,  in  order  to 


AND  SELF-GOVERNMENT.  235 

It  makes  a  participation  of  the  people  in  the  administration 
of  justice  possible  without  having  the  serious  evil  of  courts, 
consisting  of  multitudes  or  mobs,  or  the  confusion  of  the 
branches  of  the  administration  of  justice,  of  judges  and  triers; 

It  obtains  the  great  advantage  of  a  mean  of  views  of  facts, 
regarding  which  Aristotle  said  that  many  persons  are  more 
just  than  one,  although  each  of  the  many  were  less  so  than 
the  one;  without  incurring  the  disadvantages  and  the  injustice 
of  vague  multitudes ; 

It  brings,  in  most  cases,  a  degree  of  personal  acquaintance 
with  the  parties,  and  frequently  with  the  witnesses,  to  aid  in 
deciding; 

It  gives  the  people  opportunities  to  ward  off  the  inadmissi- 
ble and  strained  demands  of  the  government ; ' 

It  is  necessary  for  a  complete  accusatorial  procedure ; 


avoid  the  evil  of  letting  technicalities  get  the  better  of  essential  justice,  of  letting 
the  minds  of  professional  lawyers,  whose  very  duty  it  is  to  train  themselves  in 
strict,  uncompromising  logic,  decide  complicated  and  important  cases  in  the  last 
resort,  they  allow  an  appeal  from  all  the  judges  to  the  house  of  lords,  or  to  the 
senate. 

It  appears  to  mc  an  important  fact,  which  ought  always  to  be  remembered 
when  the  subject  of  trial  by  jury  in  general  is  discussed,  that  by  the  trial  by  jury 
the  Anglican  race  endeavors,  among  other  things,  to  insure  the  continuous  and 
necessaiy  admixture  of  common  sense  in  the  decision  of  cases;  and  who  can 
deny  that  in  all  practical  cases,  in  all  controversies,  in  all  disputes,  and  in  all 
questions  which  require  the  application  of  general  rules  or  principles  to  concrete 
cases,  common  sense  is  indispensable,  that  is,  sound  judgment,  which  avoids  the 
Nimium  ?  Who  will  deny  that  every  one  is  liable  to  have  this  tact  and  plain 
soundness  of  judgment  impaired  in  that  veiy  line  or  sphere  in  which  his  calling 
has  made  it  his  duty  to  settle  general  principles,  to  find  general  rules,  to  defend 
general  points?  The  grammarian,  by  profession,  frequently,  perhaps  generally, 
writes  pedantically  and  stiffly;  the  religious  controversialist  goes  to  extremes ; 
the  philosopher,  by  profession,  is  apt  to  divide,  distinguish,  and  classify  beyond 
what  reality  warrants ;  the  soldier,  by  profession,  is  apt  to  sacrifice  advantages  to 
his  science.     Dr.  Sangrado  is  the  caricature  of  the  truth  here  maintained. 

The  denial  of  the  neces^ty  of  profound  study  and  professional  occupation 
would  be  as  fanatical  as  the  disregard  of  common  sense  would  be  supercilious 
and  unphilosophical.  Truth  stands,  in  all  spheres,  emphatically  in  need  of 
both. 

'  The  whole  history  of  the  libel,  down  to  Charles  Fox's  immortal  bill,  may  serve 
as  an  illustration. 


236 


ON  CIVIL   LIBERTY 


It  makes  the  administration  of  justice  a  matter  of  the  people, 
and  awakens  confidence ; 

It  binds  the  citizen  with  increased  pubHc  spirit  to  the 
government  of  his  commonwealth,  and  gives  him  a  constant 
and  renewed  share  in  one  of  the  highest  public  affairs,  the 
application  of  the  abstract  law  to  the  reality  of  life — the 
administration  of  justice ; 

It  teaches  law  and  liberty,  order  and  rights,  justice  and 
government,  and  carries  this  knowledge  over  the  land ; '  it  is 
the  greatest  practical  school  of  free  citizenship  ; 

It  throws  a  great  part  of  the  responsibility  upon  the  people, 
and  thus  elevates  the  citizen  while  it  legitimately  strengthens 
the  government ; 

It  does  not  only  elevate  the  judge,  but  makes  him  a  popular 
magistrate,  looked  up  to  with  confidence  and  favor ;  which  is 
nowhere  else  the  case  in  the  same  degree,  and  yet  is  of  great 
importance,  especially  for  liberty  ; 

It  is  the  great  bulwark  of  liberty  in  monarchies  against  the 
crown ; 

It  stands,  in  republics,  as  a  committee  of  the  people,  between 
the  accused  and  the  people  themselves,  a  more  exacting  king 
when  excited  than  one  that  wears  a  crown  ; 

It  alone  makes  it  possible  to  decide  to  the  satisfaction  of  the 
public  those  cases  which  must  be  decided,  and  which,  never- 
theless, do  not  lie  within  the  strict  limits  of  the  positive  law; 


*  Lord  Chancellor  Cranworth  said,  in  Februaiy,  1853,  in  the  house  of  lords: 
"There  were  many  other  subjects  to  be  considered.  Trial  by  judge  instead  of 
by  jury  had  been  eminently  successful  in  the  county  courts  ;  but,  in  attempting  to 
extend  this  to  cases  tried  in  other  courts,  we  must  not  lose  sight  of  the  fact  that  we 
should  be  taking  a  step  towards  unfitting  for  their  duties  those  who  are  to  send 
representatives  to  the  other  house  of  parliament,  who  are  to  perform  municipal 
functions  in  towns,  and  who  are  to  exercise  a  variety  of  those  local  jurisdictions 
which  constitute  in  some  sort  in  this  country  a  system  of  self-government.  It 
may  be  veiy  dangerous  to  withdraw  from  them  that  duty  of  assisting  in  the  ad- 
ministration of  justice.  Mechanics'  schools  may  afford  valuable  instruction,  but 
I  doubt  if  there  is  any  school  that  reads  such  practical  lessons  of  wisdom,  and 
tends  so  much  to  strengthen  the  mind,  as  to  serve  as  a  juryman  in  the  adminis- 
tration of  justice." 


AND  SELF-GOVERNMENT.  237 

It  alone  makes  it  possible  to  reconcile,  in  some  degree,  old 

and  cruel  laws,  if  the  legislature  omits  to  abolish  them,  with 

"^a  spirit  of  humanity,  which  the  judge  could  never  do  without 

undermining  the  ground  on  which  alone  he  can  have  a  firm 

footing ; 

It  is  hardly  possible  to  imagine  a  living,  vigorous,  and 
expanding  common  law  without  it ; 

It  is  with  the  representative  system  one  of  the  greatest 
institutions  which  develop,  the  love  of  the  law,  and  without 
this  love  there  can  be  no  sovereignty  of  the  law  in  the  true 
sense; 

It  is  part  and  parcel  of  the  Anglican  self-government ; 

It  gives  to  the  advocate  that  independent  and  honored 
position  which  the  accusatorial  process  as  well  as  liberty  re- 
quires, and  it  is  a  school  for  those  great  advocates  without 
which  broad  popular  liberty  does  not  exist. 

Mr.  Hallam,  speaking  in  his  work  on  the  Middle  Ages  of 
"  the  grand  principle  of  the  Saxon  polity,  the  trial  of  facts 
by  the  country,"  says,  "from  this  principle  (except  as  to  that 
preposterous  relic  of  barbarism,  the  requirement  of  unanimity) 
may  we  never  swerve — may  we  never  be  compelled  in  wish  to 
swerve — by  a  contempt  of  their  oaths  in  jurors,  a  disregard 
of  the  just  limits  of  their  trusts."  To  these  latter  words  I 
shall  only  add,  that  the  fact  of  the  jury's  being  called  by  the 
law  the  countr\%  and  of  the  indicted  person's  saying  that 
he  will  be  tried  by  God  and  his  country,  are  facts  full  of 
meaning,  and  expressive  of  a  great  part  of  the  beauty  and  the 
advantages  of  the  trial  by  jury.^  There  is,  however,  no 
mysterious  efficacy  inherent  in  this  or  any  other  institution, 
nor  any  peculiar  property  in  the  name.  Juries  must  be  well 
organized,  and  must  conscientiously  do  their  duty.  They  be- 
come, like  all  other  guarantees  of  liberty,  very  dangerous  in 
the  hands  of  the  government,  when  nothing  but  the  form  is 
left  and  the  spirit  of  loyalty  and  of  liberty  is  gone.     A  cor- 


'  On  all  these  subjects  connected  with  the  jury  I  must  refer  to  the  Political 
Ethics. 


238 


ON  CIVIL  LIBERTY 


rupt  or  facile  jury  is  the  most  convenient  agent  for  despotism, 
or  a  sure  road  to  anarchy. 

The  jury  trial  has  been  mentioned  here  as  one  of  the  guar- 
antees of  liberty,  and  it  might  not  be  improper  to  add  some 
remarks  on  the  question  whether  the  unanimous  verdict  ought 
to  be  retained,  or  whether  a  verdict  as  the  result  of  two-thirds 
or  a  simple  majority  of  jurors  agreeing  ought  to  be  adopted. 
This  is  an  important  subject,  occupying  the  serious  attention 
of  many  persons.  But,  however  important  the  subject  may 
be,  and  connected  as  I  believe  it  to  be  with  the  very  continu- 
ance of  the  trial  by  juiy  as  a  wholesome  institution,  and  with 
the  supremacy  of  the  law,  it  is  one  stilt  so  much  debated  that 
a  proper  discussion  would  far  exceed  the  limits  to  which  this 
work  is  restricted ;  and  the  mere  avowal  that  it  is  my  firm 
conviction,  after  long  observation  and  study,  that  the  una- 
nimity principle  ought  to  be  given  up,  would  be  of  no  value. ^ 
I  beg,  however,  to  add,  as  a  fact  at  all  events  of  interest  to 
the  student,  that  Locke  was  against  the  unanimity  principle. 
His  constitution  for  South  Carolina  has  this  provision : 
"  Every  jury  shall  consist  of  twelve  men  ;  and  it  shall  not  be 
necessary  they  should  all  agree,  but  the  verdict  shall  be 
according  to  the  consent  of  the  majority." 

The  "duke's  laws"  in  New  York,  generally  ascribed  to  the 


'  My  conviction  has  been  much  strengthened  since  the  original  writing  of  this 
work.  The  Scottish  jury  (consisting  of  fifteen  members)  decides  by  majority. 
Our  continued  failures  of  verdicts  would  cease.  Whenever  the  juiy  is  out  more 
than  half  an  hour,  it  is  a  pretty  sure  sign  that  the  unanimity  is,  after  all, [only  one  in 
form  and  not  in  truth.  Perhaps  most  professional  men  adhere  to  the  unanimity 
principle;  but  refonns  very  rarely  proceed  from  the  profession,  in  any  sphere. 
It  was  not  the  theologians  of  the  pope  from  whom  the  Reformation  proceeded. 
We  can  add,  however,  high  authority  in  favor  of  our  opinion.  In  January,  1859, 
Lord  Campbell,  chief  justice  of  England,  declared  in  court,  after  the  jury  had 
pronounced  an  absurd  verdict,  which  he  declined  accepting,  that  he  intended  to 
propose  a  bill,  in  parliament,  for  the  purpose  of  adopting  the  majority  principle  in 
civil  cases ;  and  while  I  was  revising  these  pages,  a  very  respectable  petition, 
urged  even  by  judges,  to  allow  judges  to  decide  in  civil  cases  by  the  majority  of 
juiymen,  when  they  cannot  agree  on  a  unanimous  verdict,  was  presented  to  the 
Massachusetts  legislature.  I  consider,  however,  the  principle  of  ve-  diets  by  two- 
thirds  in  penal  cases  even  more  impr-tant  than  in  civil  cases. 


A  XD   SELF-  G  0  VERXMENT. 


239 


L,ord  Chancel  1  or  Clarendon,  the  father-in-law  of  the  Duke  of 
York,  demanded  seven  jurors,  and  unanimity  only  in  capital 
cases.' 

It  is,  besides,  well  known  that  our  number  of  twelve  jury- 
men, and  the  principle  of  their  unanimity,  arose  from  the 
circumstance  that  in  ancient  times  at  least  twelve  of  the 
compurgators  were  obliged  to  agree  before  a  verdict  would  be 
given,  and  that  compurgators  were  added  until  twelve  of  them 
agreed  one  way  or  the  other.^ 

I  conclude  here  my  remarks  on  the  institution  of  the  juiy, 
and  pass  over  to  the  last  element  of  the  independence  of  the 
law — the  independent  position  of  the  advocate. 

42.  Where  the  inquisitorial  trial  exists,  where  the  judiciary 
in  general  is  not  independent,  and  where  the  judges  more  or 
less  feel  themselves,  and  are  universally  considered,  as  govern- 
ment officers,  it  is  in  vain  to  look  for  independent  advocates, 
as  a  class  of  men.  Their  whole  position,  especially  where 
the  trial  is  not  public,  prevents  the  development  of  this  inde- 
pendence, and  the  consideration  they  have  to  take  of  their 
future  career  would  soon  check  it  where  it  might  occasionally 
happen  to  spring  forth. 3 


'  Judge  Daly's  Historical  Sketch  of  the  Judicial  Tribunals  of  New  York,  New 
York,  1855,  page  53. 

*  Forsyth,  History  of  the  Trial  by  Juiy. 

3  Feuerbach,  in  his  Manual  of  the  Common  German  Penal  Law,  loth  edition, 
2  623,  says  that  in  the  inquisitorial  proceeding  we  have  to  represent  the  judge  to 
our  minds  as  the  representative  of  the  offended  state,  inasmuch  as  it  is  his  duty 
to  see  justice  done  for  it  according  to  the  penal  law ;  as  representative  of  the  ac- 
cused, inasmuch  as  he  is  bound  at  the  same  time  to  find  out  everything  on  which 
innocence  or  a  less  degree  of  criminality  can  be  founded  ;  and  finally,  as  judge, 
inasmuch  as  he  must  decide  upon  the  given  facts.  Why  not  add  to  this  fearful 
triad  the  jailer,  the  executioner  ? 

Although  a  "  defensor"  is  appointed,  it  is  difficult  for  him  to  do  his  work 
properly;  for  in  the  German  inquisitorial  process  the  defence  begins  when  the 
inquiring  judge  has  finished,  or  the  "acta"  are  closed,  that  is,  when  the  written 
report  of  the  judge  is  made.  Now,  a  lawyer  does  not  feel  veiy  free  to  attack  the 
writing  of  a  judge  upon  whom  his  advancement  probably  de|iends,  even  if  any 
latitude  were  given  to  the  advocate.  Mr.  Mittermaier,  note  d,  §  14,  of  his 
Art  of  Defending,  2d  edition,  speaks  openly  of  the  great  difficulty  encountered 


240 


ON  CIVIL   LIBERTY 


The  independence  of  the  advocate  is  important  in  many  re-. 
spects.  The  prisoner,  in  penal  trials,  ought  to  have  counsel. 
Even  Lord  Jeffreys,  who  among  judges  is  what  Alexander  VI. 
was  among  popes,  declared  it,  as  far  back  as  the  seventeenth 
century,  a  cruel  anomaly  that  counsel  were  permitted  in  a  case 
of  a  few  shillings,  but  not  in  a  case  of  life  and  death.  But 
counsel  of  the  prisoner  can  be  of  no  avail  if  they  do  not  feel 
themselves  independent  in  a  very  high  degree.  This  inde- 
pendence is  necessary  for  the  daily  protection  of  the  citizen's 
rights.  It  is  important  for  a  proper  and  sound  development 
of  the  law;  for  it  is  not  only  the  decisions  of  the  judges  which 
frequently  settle  the  most  weighty  points  and  rights,  but  also 
the  masterly  arguments  of  the  advocates  ;  and,  lastly,  it  is 
important  in  all  so-called  political  trials. 

May  we  never  have  reason  to  wish  it  otherwise !  The  limits 
of  the  advocate,  especially  as  counsel  in  criminal  cases,  and 
which  doubtless  form  a  subject  connected  with  liberty  itself, 
nevertheless  belong  more  properly  to  political  and  especially 
to  legal  ethics.  As  such  I  have  treated  of  them  in  the  Polit- 
ical Ethics.  I  own,  however,  that,  when  writing  that  work,  the 
topic  had  not  acquired  in  my  mind  all  the  importance  and 
distinctness  which  its  farther  pursuit,  and  the  perusal  of  works 
on  this  important  chapter  of  practical  ethics,  have  produced. 
I  am  sorr}^  to  say  that  very  few  of  these  works  or  essays  seem 
manfully  to  grapple  with  it  and  to  put  it  upon  solid  ground. 
It  is  desirable  that  this  should  be  done  thoroughly  and  philo- 
sophically. This  is  the  more  necessary,  as  the  loosest  and 
vaguest  notions  on  the  rights  of  the  advocate  are  entertained 


by  the  "  defensor"  in  unveiling  the  imperfections  of  the  acta  which  have  been 
sent  him,  because  he  thereby  offends  his  superior,  upon  whom  his  whole  career 
may  depend;  and  Mr.  Voget,  the  de''ensor  of  the  woman  Gottfried,  in  Bremen, 
who  had  poisoned  some  thirty  persons,  fully  indorses  these  remarks  of  Mr.  Mit- 
termaier,  in  his  work,  The  Poisoner,  G.  M.  Gottfried,  Bremen,  1830,  (first  di- 
vision, pp.  17  and  18.)  He  concludes  his  remarks  with  these  words:  "Who 
does  not  occasionally  think  of  the  passage,  i  Sam.  29  :  6 — Non  inveni  in  te  quid- 
quam  mali,  sed  satmpis  non  places,"  (or,  as  our  version  of  the  Bible  has  it: 
Nevertheless,  the  lords  favor  thee  not.) 


AND  SELF-GOVERNMENT.  24 1 

by  many  respectable  men,  and  the  most  untenable  opinions 
have  been  uttered  by  high  authorities.* 

In  this  work,  however,  all  that  I  am  permitted  to  do  is  to 
indicate  the  true  position  of  the  advocate  in  our  Anglican 
system  of  justice,  and  to  allude  to  the  duties  flowing  from  it. 

Most  writers  discuss  "  the  time-honored  usage  of  the  pro- 
fession in  advocating  one  side,"  and  of  saying  all  that  can  be 
said  in  defence  of  the  prisoner.  No  one  at  all  conversant  with 
the  subject  has  ever  had  any  doubt  upon  this  point.  It  is  a 
necessary  effect  of  the  accusatorial  procedure.  Indeed,  it  forma 
an  essential  part  of  it.  But  the  writers  go  on  maintaining 
that  therefore  the  advocate  may,  and  indeed  must,  do  anO 
say  for  his  client  all  that  the  latter  would  do  and  say  for  him- 
self, had  he  the  requisite  talent  and  knowledge.  And  here 
lies  the  error,  moral  as  well  as  legal.^ 

No  man  is  allowed  to  do  wrong,  for  instance  to  tell  an 
untruth,  or  to  asperse  the  character  of  an  innocent  person, 
either  in  his  own  behalf  or  for  another.  The  prisoner  would 
do  wrong  in  lying,  and  no  one  has  a  right  to  do  it  for  him 
The  lawyer  is  no  more  freed  from  the  moral  law  or  the  obliga- 
tion of  truth  than  any  other  mortal,  nor  can  he  divest  himself 
of  his  individuality  any  more  than  other  men.  If  he  lies,  he 
lies  as  every  other  man,  at  his  own  individual  peril.  If,  as 
Lord  Brougham  stated  it,  the  only  object  of  counsel  is  to  free 
the  prisoner,  at  whatever  risk,  why,  then,  not  also  do  certain 
things  for  the  prisoner  which  he  would  do  were  he  free? 
Many  an  indicted  murderer  would  make  away  with  a  danger- 


'  For  instance,  Lord  Brougham's  well-known  assertion  uttered  at  the  trial  of 
Queen  Caroline — often  commented  upon,  but  never  taken  back  or  modified  by 
the  speaker, — p.  91,  Legal  and  Political  Hermeneutics.  See  also  an  article  on 
License  of  Counsel  in  the  January  number,  1841,  of  Westminster  Review.  The 
case  of  Sir  Arthur  Pigott,  attorney-general  of  the  Duchy  of  Cornwall,  stating  in 
court,  for  the  Prince  of  Wales,  that  he  had  never  heard  of  bonds  of  the  Dutch 
loan,  which  the  prince  and  some  of  his  brokers  had  made,  has  been  referred  to 
before.  The  list  of  shameful  tricks — actual  tricks — to  which  counsel  have  occa- 
sionally resorted  in  our  courts,  would  require  a  large  space. 

"Consult  Hortensius:  an  Historical  View  of  the  Office  and  Duties  of  an 
Advocate,  by  William  Forsyth,  London,  18  3. 

16 


242 


UN  CIVIL  LIBERTY 


ous  witness,  if  the  prison  did  not  prevent  him.  Why,  then, 
ought  not  the  lawyer  to  do  this  for  him  ?  Because  it  would 
be  murder?  And  why  not?  If  the  advocate  is  to  say  and  do 
all  the  prisoner  would  do  and  say  for  himself,  irrespective  of 
morality,  the  supposed  case  is  more  glaring,  indeed,  but  in 
principle  the  same  with  many  actual  ones.  The  fact  is,  the 
rights  of  the  advocate,  or  the  defence  of  his  speaking  on  one 
side,  cannot  be  put  on  a  worse  foundation  than  by  thus  making 
him  a  part  of  the  prisoner's  irrdividuality,  or  a  substitute.  Nor 
could  there  be  a  more  degrading  position  than  that  of  letting 
one's  talent  or  knowledge  for  hire,  no  matter  whether  for  just 
or  unjust,  moral  or  immoral  purposes.  Indeed,  why  should 
this  knowledge  for  hire  begin  its  appropriate  operation  during 
the  trial  only,  if  escape  is  the  only  object  ?  Why  not  try  to  foil 
the  endeavors  of  the  detective  police  ?  Is  it  only  because  the 
retaining  fee  has  not  yet  been  paid,  and  that,  so  soon  as  it  is  in 
the  advocate's  hand,  he  has  a  right  to  say,  with  the  ancient 
poet:  I  deem  no  speaking  evil  that  results  in  gain?'  This 
cannot  be.  All  of  us  have  learned  to  venerate  Socrates,  whom 
Lord  Mansfield  calls  the  greatest  of  lawyers,  for  having  made 
victorious  war  on  the  sophists,  and  having  established  ethics 
on  pure  and  dignified  principles ;  and  now  we  are  called  upon 
to  sanction  everything,  without  reference  to  morality  and  truth, 
in  an  entire  and  highly  privileged  class,  and  in  the  perform- 
ance of  the  most  sacred  business  of  which  political  man  has 
any  knowledge.  If  lawyers  insist  upon  this  revolting  exemp- 
tion from  the  eternal  laws  of  truth  and  rectitude,  they  ought 
to  consider  that  this  will  serve  in  the  end  as  a  suggestion  to 
the  people  of  returning  to  the  Athenian  court  of  the  people. 

The  true  position  of  the  advocate  in  the  Anglican  accusato- 
lial  trial,  and  in  a  free  and  orderly  country,  is  not  one  which 
would  almost  assimilate  him  to  the  "receiver."  It  is  a  far 
different  one.  Nearly  in  all  free  countries,  but  especially  in 
all  modern  free  countries,  has  the  advocate  assumed  a  promi- 
nent position.     He  is  an  important  person  as  advocate,  and  as 


Ao/cw  jjJkv  ov6lv  prjjia  avv  Kepdei  kokov. 


AXD  SELF-GOVERNMENT.  243 

belonging  to  that  profession  from  which  the  people  necessarily 
must  always  take  many  of  their  most  efficient  law-makers, 
from  which  arise  many  of  the  greatest  statesmen, — whatever 
the  English  prejudice,  even  of  such  men  as  Chatham,  to  the 
contrary  may  long  have  been, — and  which  has  formed  in  free 
states  many  of  their  immortal  orators.' 


'  There  was  a  time  vvlien  diplomacy  and  dislionest  subtlety  were  nearly 
synonymous — when  it  was  discussed  how  signatures  might  be  written  so  that 
after  a  number  of  years  they  would  vanish.  Since  that  time,  diplomacy  has 
signally  improved.  We  are  now  living  in  an  age  in  which  a  corresponding  im- 
provement is  manifestly  going  on  in  legal  ethics.  We  discuss  the  pertinent  topics 
at  least,  and  public  attention  is  alive.  The  following  article,  taken  from  the 
London  Spectator,  Sept.  3,  1853,  may  find  an  appropriate  place  in  a  note: 

"  However  little  the  Smyth  case  can  have  answered  the  puipose  of  the  man 
who  claimed  the  property,  it  will  not  be  entirely  without  beneficial  result,  since 
it  has  put  in  a  very  strong  light  a  moral  which  has  not  escaped  the  legal  profes- 
sion. Some  time  ago  it  was  argued  that  a  barrister  becomes  completely  the 
agent  and  advocate  of  his  client,  engaged  solely  to  present  all  that  may  be  said 
on  the  side  of  that  client,  and  disengaged  from  any  moral  responsibility  as  to  the 
merits  of  the  case.  This  doctrine,  however,  although  it  was  convenient  for  the 
consciences  of  professional  men  less  sensitive  than  Romilly,  could  not  be  sus- 
tained entirely;  and  barristers  have  gone  to  the  equally  erroneous  opposite 
extreme — tlint  of  throwing  up  a  brief  as  soon  as  a  grossly  fraudulent  character 
was  exposed  in  their  case.  Mr.  Bovill  threw  up  his.  brief  in  the  Smyth  case,  and 
in  doing  so,  we  think,  violated  the  true  principle  upon  which  a  barrister  should 
act ;  a  principle  which  has  not  been  unrecognized  by  the  profession.  It  is,  that 
the  barrister  is  engaged  for  the  purpose  of  seeing  that  his  client  be  treated  accord- 
ing to  law  and  in  no  other  way ;  that  he  have  all  the  evidence  that  can  be  pro- 
cured and  set  forth  for  him  ;  that  the  evidence  be  taken  according  to  rule  and 
practice;  that  the  judge  charge  the  jury  according  to  law  and  rule;  in  short, 
that  the  whole  proceedings  be  regular  and  complete  in  all  that  is  required  on  the 
part  of  the  client.  Acting  on  this  principle,  the  barrister  can  retain  his  brief  to 
the  last,  as  well  as  on  the  principle  of  absolute  agency;  but  he  is  not  required  to 
be  an  accomplice  in  suborning  false  evidence,  or  in  setting  forth  pleas  that  he 
knows  to  be  fraudulent ;  nor  is  he  bound  to  anticipate  the  judgment  by  a  declara- 
tion of  the  verdict  in  the  act  of  throwing  up  his  brief. 

"  This  principle  has  been  recognized  so  far  that  there  is  a  prospect  of  its  be- 
coming more  generally  adopted  as  the  rule  of  the  profession.  But  the  Smyth 
case  suggests  to  us  that  it  may  very  properly  be  extended  to  the  other  half  of 
the  profession — the  attorneys.  They  are  bound  to  exercise  discretion  in  their 
conduct  with  their  clients,  otherwise  they  become  parties  to  conspiracy  and  fraud. 
Considering  all  the  opportunities  that  a  man  in  the  profession  has  of  discrimina- 
ting, it  is  difficult  to  find  hiri  thus  placed  and  to  acquit  him  either  of  an  extraor- 


244 


ON  CIVIL  LIBERTY 


The  advocate  is  part  and  parcel  of  the  whole  machinery  of 
administering  justice,  as  much  so  as  the  jury,  the  judge,  or 
the  prosecutor.  Ke  forms  an  integral  part  of  the  whole  con- 
trivance called  the  trial ;  and  the  only  object  of  the  trial  is  to 
find  out  legal  truth  so  that  justice  may  be  administered.  In 
tliis  trial,  it  has  been  found  most  desirable  to  place  the  judge 
beyond  the  parties,  to  let  both  parties  appear  before  him,  and 
to  let  both  parties  say  all  they  can  say  in  their  favor,  so  that 
the  truth  may  be  ascertained  without  the  judge's  taking  part 
in  the  inquiry,  and  thus  becoming  personally  interested  in  the 
conviction,  or  in  either  party.  The  advocate  is  essentially  an 
amicus  curiae ;  he  help§  to  find  the  truth,  and  for  this  purpose 
it  is  necessary  that  all  that  can  be  said  in  favor  of  his  client 
or  in  mitigation  of  the  law  be  stated ;  because  the  opposite 
party  does  the  opposite,  and  because  the  case  as  well  as  the 
law  ought  to  be  viewed  from  all  sides,  before  a  decision  be 
made.  The  advocate  ought  not  only  to  say  all  that  his  client 
might  say  had  he  the  necessary  skill  and  knowledge,  but  even 
more ;  but  the  client  or  prisoner  has  no  right  to  speak  the 
untruth  in  his  own  behalf,  nor  has  the  lawyer  the  right  to  do 
it  for  him. 

Chief-Justice  Hale  severely  reproves  the  misstating  authori- 
ties and  thus  misleading  the  court ;  but  why  should  this  be 
wrong,  and  the  misstating  of  facts  not?  Many  prisoners 
would  certainly  misstate  authorities  if  they  could.  Trials  are 
not  established  for  lawyers  to  show  their  skill  or  to  get  their 
fees,  nor  for  arraigned  persons  to  escape.  They  are  estab- 
lished as  a  means  of  ascertaining  truth  and  dispensing  jus- 
tice ;  not  to  promote  or  aid  injustice  or  immorality.  The 
advocate's  duty  is,  then,  to  say  everything  that  possibly  can 


dinary  degree  of  dulness  or  of  culpable  knowledge.  It  is,  for  example,  excess- 
ively difficult  to  understand  how  any  professional  man  could  see  Smyth,  hear 
him  tell  his  lies — nay,  take  them  down  in  writing  in  order  to  insert  them  in  the 
brief — and  not  understand  the  whole  character  of  the  fraud.  Now,  no  attorney 
would  put  himself  into  this  position,  however  fraudulent  his  client  might  be,  if 
he  confined  himself  to  the  principle  which  we  have  mentioned  as  adopted  by 
barristers." 


AND  SELF-GOVERNMENT.  245 

be  said  in  favor  of  his  case  or  client,  even  if  he  does  not  feel 
any  strong  reliance  on  his  argument,  because  what  appears  to 
himself  weak  may  not  appear  as  such  to  other  minds,  or  may 
contain  some  truth  which  will  modify  the  result  of  the  whole. 
But  he  is  not  allowed  to  use  falsehood,  nor  to  injure  others. 
Allowing  this  to  him  would  not  be  independence,  but  an  arbi- 
trarily privileged  position,  tyrannical  toward  the  rest  of  society.' 
To  allow  tricks  to  a  whole  profession,  or  to  claim  them  by  law, 
seems  monstrous.  There  is  no  separate  decalogue  for  lawyers, 
any  more  than  for  king,  partisan,  or  beadle. 

The  lawyer  is  obliged,  as  was  stated  before,  to  find  out 
cveiything  that  can  be  found  in  favor  of  the  person  who  has 
intrusted  himself  to  his  protecting  care,  because  the  opposite 
will  be  done  by  the  opposite  party.  He  has  no  right  to 
decline  the  defence  of  a  person,  which  means  the  finding  out 
for  him  all  that  fairly  can  be  said  in  his  favor,  except  indeed  in 
very  peculiar  cases.  Declining  the  defence  beforehand  would 
amount  to  a  prejudging  of  the  case;  and  in  the  division  of 
judicial  labor  every  one  ought  to  be  defended.*     The  defence 

'  The  famous  case  of  Mr.  Philips,  now  on  the  bench,  when  defending  Cour- 
voisier,  is  treated  at  considerable  length  in  Townsend's  Modern  Stale  Trials, 
under  the  trial  of  Courvoisier.  It  must  be  allowed  that  the  defence  is  not  suc- 
cessful, though  ingenious.  On  page  312  of  vol.  i.  of  that  work,  the  reader  will 
also  find  the  titles  of  numerous  writings  bearing  on  the  moral  obligations  of  the 
advocate,  to  which  may  be  added  those  I  have  mentioned  in  the  notes  appended 
to  my  remarks  on  the  advocate  in  the  2d  vol.  of  the  Political  Ethics.  I  also 
refer  to  pp.  59  and  sequ.  in  my  Character  of  the  Gentleman,  Charleston,  S.C, 

1847. 

»  At  the  very  moment  that  these  pages  are  passing  through  the  press,  (in  1853,) 
a  case  has  occurred  in  an  English  court,  of  a  young  man  indicted  for  burgla- 
riously entering  the  room  of  some  young  woman.  His  counsel  in  the  defence 
suggested  that  probably  the  young  lady  had  given  an  appointment  to  the  pris- 
oner. "That  is  not  in  the  brief,"  cried  the  prisoner  himself, and  the  court  justly 
reprimanded  the  barrister.  It  ought  to  be  added  that  in  this  case  the  barrister 
wrote  a  letter  of  submission  to  the  court.  This  has  not  been  done  in  other  cases 
quite  as  bad  in  principle.  Thus,  another  publicly  reproved  barrister  insisted  that 
he  had  done  what  the  profession  required  when  he  had  resorted  to  the  following 
trick.  He  had  subpoenaed  the  chief  witness  against  his  client,  so  that  he  could 
not  appear,  and  then  argued  that  the  prosecutor  must  know  his  client  to  be 
innocent,  else  he  would  certainly  have  produced  his  witness,  etc. 

Since  this  was  written,  the  following  case  has  occurred,  (in  Cincinnati,  1853.) 


246  ON  CIVIL  LIBERTY 

of  possible  innocence,  not  the  defeat  of  justice,  is  the  aim  of 
counsel. 

Great  advocates,  such  as  Romilly,^  have  very  distinctly 
pronounced  themselves  against  that  view  which  still  seems  the 
prevailing  one  among  the  lawyers ;  and  Dr.  Thomas  Arnold 
was  so  deeply  impressed  with  the  moral  danger  to  which  the 
profession  of  th^  law,  at  present,  exposes  its  votary,  that  he 
used  to  persuade  his  pupils  not  to  become  lawyers ;  while  Mr. 
Bentham  openly  declared  that  no  person  could  escape,  and 
that  even  Romilly  had  not  remained  wholly  untainted. 

It  ought  to  be  observed,  however,  that  a  more  correct  opinion 
on  the  obligations  of  the  advocate  seems  to  be  fast  gaining 
■ground  in  England.  At  present  it  seems  to  be  restricted  to 
the  public  ;  but  the  time  will  come  when  this  opinion  will  reach 
the  profession  itself  Like  almost  all  reforms,  it  comes  from 
without,  and  will  ultimately  force  an  entrance  into  the  courts 
and  the  inns.  We  are  thus  earnest  in  our  desire  of  seeing 
correct  views  on  this  subject  prevail,  because  we  have  so  high 
an  opinion  of  the  importance  of  the  advocate  in  a  modern 
free  polity.^ 


When  the  defence  came  on,  three  hundred  witnesses  were  sworn.  The  prosecu- 
tion of  course  did  not  believe  that  its  turn  would  come  for  a  long  time.  But  the 
defence  only  examined  some  four  witnesses,  and  then  declared  it  had  done.  The 
prosecution  was  not  prepared  to  proceed,  and  asked  for  delay ;  but  the  court 
decided  that  the  case  could  not  be  stopped.  Thus  the  whole  trial  was  upset, 
and  a  verdict  of  not  guilty  was  found.  Now,  are  such  atrocities  to  be  borne 
with?     Does  freedom  consist  in  giving  all  possible  protection  to  trickery? 

*  There  is  a  very  excellent  passage  on  this  topic  in  the  reflections  of  Sir  Samuel 
Romilly  on  himself  and  the  good  he  might  do  should  he  be  appointed  lord 
chancellor,  page  384  and  sequ.  of  vol.  iii.  of  his  Memoirs,  2d  ed.,  London,  1S40. 

»  This  was  written  in  1853. 


AND  SELF-GOVERNMENT.  247 


CHAPTER    XXI. 


SELF-GOVERNMENT. 


The  last  constituent  of  our  liberty  that  I  shall  mention  is 
local  and  institutional  self-government.'     Many  of  the  guaran- 


'  The  history  of  this  proud  word  is  this  :  It  was  doubtless  made  in  imitation  of 
the  Greek  autonomy,  and  seems  originally  to  have  been  used  in  a  moral  sense 
only.  It  is  of  frequent  occurrence  in  the  works  of  the  divines  who  flourished  in 
the  sixteenth  and  seventeenth  centuries.  After  that  period  it  appears  to  have 
been  dropped  for  a  time.  We  find  it  in  none  of  the  English  dictionaries,  although 
a  long  list  of  words  is  given  compounded  with  self,  and  among  them  many  which 
are  now  wholly  out  of  use;  for  instance,  Shakspeare's  Self-sovereignty.  In  Dr. 
Worcester's  Universal  and  Critical  Dictionary,  the  word  is  marked  with  a  star, 
which  denotes  that  he  has  added  it  to  Dr.  Johnson's,  and  the  authority  given  is 
Paley,  who,  to  my  certain  knowledge,  does  not  use  it  in  his  Political  Philosophy, 
nor  have  several  of  my  friends  succeeded  in  finding  it  in  any  other  part  of  his 
works,  although  diligent  search  has  been  made.    [It  is  in  Webster,  ed.  of  1848.] 

Whether  the  term  wa^  first  used  for  political  self-government  in  England  or 
America  I  have  not  been  able  to  ascertain.  Richard  Price,  D.D.,  used  it  in  a 
political  sense  in  his  Observations  on  the  Nature  of  Civil  Liberty,  etc.,  3d  edition, 
London,  1776,  although  it  does  not  clearly  appear  whether  he  means  what  we 
now  designate  by  independence,  or  internal  (domestic)  self-government.  Jeffer- 
son said,  in  1798,  that  "the  residuary  rights  are  reserved  to  their  (the  American 
states')  own  self-government^  The  term  is  now  freely  used  both  in  England 
and  America.  In  the  former  country  we  find  a  book  on  Local  Self-government; 
in  ours,  Daniel  Webster  said,  on  May  the  22d,  1852,  in  his  Faneuil  Hall  speech: 
"But  I  say  to  you  and  to  our  whole  country,  and  to  all  the  crowned  heads  and 
aristocratic  powers  and  feudal  systems  that  exist,  that  it  is  to  self-government,  the 
great  principle  of  popular  representation  and  administration — the  system  that  lets 
in  all  to  participate  in  the  counsels  that  are  to  assign  the  good  or  evil  to  all — that 
we  may  owe  what  we  are  and  what  we  hope  to  be." 

Earl  Derby,  when  premier,  said,  in  the  house  of  lords,  that  the  officers  sent 
from  abroad  to  assist  in  the  funeral  of  the  Duke  of  Wellington  would  "  bear  wit- 
ness back  to  their  own  country  how  safely  and  to  what  extent  a  people  might  be 
relied  upon  in  whom  the  strongest  hold  of  their  government  was  their  own  rever- 
ence and  respect  for  the  free  institutions  of  their  country,  and  the  principles  of 
popular  self-government  controlled  and  modified  by  constitutional  monarchy." 


248  ON  CIVIL  LIBERTY 

tees  of  individual  liberty  which  have  been  mentioned  receive 
their  true  import  in  a  pervading  system  of  self-government, 
and  on  the  other  hand  are  its  refreshing  springs.  Individual 
liberty  consists,  in  a  great  measure,  in  politically  acknowledged 
self-reliance,  and  self-government  is  the  sanction  of  self-reliance 
and  self-determination  in  the  various  minor  and  larger  circles 
in  which  government  acts  and  of  which  it  consists.  Without 
local  self-government,  in  other  words,  self-government  con- 
sistently carried  out  and  applied  to  the  realities  of  life,  and  not 
remaining  a  mere  general  theory,  there  is  no  real  self-govern- 
ment according  to  Anglican  views  and  feelings.  Self-govern- 
ment is  founded  on  the  willingness  of  the  people  to  take  care 
of  their  own  affairs,  and  the  absence  of  that  disposition  which 
looks  to  the  general  government  for  everything ;  as  well  as  on 


In  one  word,  self-government  is  now  largely  used  on  both  sides  of  the  Atlantic, 
in  a  political  sense. 

This  modern  use  of  the  word  is  no  innovation,  as  it  was  no  innovation  when 
St.  Paul  used  the  old  Greek  word  marig  in  the  vastly  expanded  sense  of  Christian 
faith.  Ideas  must  be  designated.  The  innovation  was  Christianity  itself,  not 
the  use  of  the  word  to  designate  an  idea  greater  than  Pistis  could  have  signified 
before. 

That  self-government  in  politics  is  always  applied  by  the  English-speaking 
race  for  the  self-government  of  the  people  or  of  an  institution, — in  other  words, 
that  se/f  has  in  this  sense  a  reflective  meaning, — is  as  natural  as  the  fact  itself  that 
the  word  has  come,  in  course  of  time,  to  be  applied  to  political  government, 
simply  because  we  must  express  the  idea  of  a  people  or  a  part  of  a  people  who 
govern  themselves  and  are  not  governed  by  some  one  else. 

Self-government  belongs  to  the  Anglican  race,  and  the  English  word  is  used 
even  by  foreigners.  A  German  and  a  French  statesman,  both  distinguished  in 
literature  and  politics,  used  not  long  ago  the  English  word  in  conversations  in 
their  own  languages  with  me. 

Donaldson's  Greek  Dictionary  renders  uvrovofzia  by  self-government. 

The  word  self,  or  its  corresponding  term  in  other  languages,  may  have  a 
reflective  sense,  as  in  self-murder,  or  it  may  have  a  merely  emphatic  or  exclusive 
meaning,  {^se,  he  himself.  Hence  the  fact  that  the  Emperor  of  Russia  calls  him- 
self autocrat  of  all  the  Russias,  (self-ruler,  himself  and  alone  the  ruler,)  and  we 
use  the  corresponding  word  self-government  for  the  opposite,  the  government  in 
which  the  ruling  is  left  to  the  ruled.  The  old  English  self-sovereign  is  the  exact 
rendering  of  autocrat.  The  Germans  use  the  word  Selbst-Verlag,  i.e.,  sale  of  the 
book  by  the  author  himself.  German  wine-shops  in  New  York  have  frequently 
on  their  signs,  in  English,  the  ludicrous  words  Self-Imported  Wines. 


AND  SELF-GOVERNMENT.  249 

the  willingness  in  each  to  let  others  take  care  of  their  own 
affairs.  It  cannot  exist  where  the  general  principle  of  inter- 
ference prevails,  that  is,  the  general  disposition  in  the  executive 
and  administration  to  do  all  it  possibly  can  do,  and  to  substi- 
tute its  action  for  individual  or  minor  activity  and  for  self- 
reliance.     Self-government  is  the  corollary  of  liberty. 

So  far  we  have  chiefly  spoken  of  that  part  of  liberty  which 
consists  in  checks,  except  indeed  when  we  treated  of  repre- 
sentative legislatures ;  self-government  may  be  said  to  be 
liberty  in  action.  It  requires  a  pervading  conviction  through- 
out the  whole  community  that  government,  and  especially  the 
executive  and  administrative  branch,  should  do  nothing  but 
what  it  necessarily  must  do,  and  which  cannot,  or  ought  not, 
or  will  not  be  done  by  self-action ;  and  that,  moreover,  it  should 
allow  matters  to  grow  and  develop  themselves.  Self-govern- 
ment implies  self-institution,  not  only  at  the  first  setting  out 
of  government,  but  as  a  permanent  principle  of  political  life. 
In  a  pervading  self-government,  the  formative  action  of  the 
citizens  is  the  rule  ;  the  general  action  of  the  government 
is  the  exception,  and  only  an  aid.  The  common  action  of 
government  in  this  system  is  not  originative,  but  regulative 
and  moderative,  or  conciliative  and  adjusting.  Self-govern- 
ment, therefore,  transacts  by  far  the  greater  bulk  of  all  public 
business  through  citizens,  who,  even  while  clad  with  authority, 
remain  essentially  and  strictly  citizens,  and  parts  of  the  people. 
It  does  not  create  or  tolerate  a  vast  hierarchy  of  officers,  form- 
ing a  class  of  mandarins  for  themselves,  and  acting  as  though 
they  formed  and  were  the  state,  and  the  people  only  the  sub- 
stratum on  which  the  state  is  founded,  similar  to  the  view 
that  the  church  consists  of  the  hierarchy  of  priests  and  that 
the  laity  are  only  the  ground  on  which  it  stands. 

A  pervading  self-government,  in  the  Anglican  sense,  is 
organic.  It  does  not  consist  in  the  mere  negation  of  power, 
which  would  be  absurd,  for  all  government  implies  power, 
authority  on  the  one  hand  and  obedience  on  the  other ;  nor 
does  it  consist  in  mere  absence  of  action,  as  little  as  the 
mere  absence  of  censorship  in  China  is  liberty  of  the  press 


250  ON  CIVIL  LIBERTY 

It  consists  in  organs  of  combined  self-action,  in  institutions, 
and  in  a  systematic  connection  of  these  institutions.  It  is 
therefore  the  opposite  at  once  of  a  disintegration  of  society 
into  individual,  dismembered  and  disjunctive  independencies, 
and  of  despotism,  whether  this  consist  in  the  satrap  despotism 
of  the  East,  (in  which  the  pacha  or  satrap  embodies  indeed 
the  general  principle  of  unfreedom  in  relation  to  his  superior, 
but  is  a  miniature  despot  or  sultan  to  all  below  him,)  or 
whether  it  consist  in  the  centralized  despotism  resting  on  a 
dense  and  thoroughly  systematized  hierarchy  of  officials,  as 
in  China  or  in  the  European  despotic  countries.  Anglican 
self-government  differs  in  principle  from  the  sejunction  into 
which  ultimately  the  government  of  the  Netherlands  lapsed ' 
and  it  is  equally  far  from  popular  absolutism,  in  which  the 
majority  is  the  absolute  despot.  The  majority  may  shift,  in- 
deed, in  popular  absolutism,  but  the  principle  does  not,  and  the 
whole  can  only  be  called  a  mutually  tyrannizing  society,  not 
a  self-government.  An  American  orator  of  note  has  lately 
called  self-government  a  people  sitting  in  committee  of  the 
whole.  It  is  a  happy  expression  of  what  he  conceives  self- 
government  to  be.  We  understand  at  once  what  he  means  ; 
but  what  he  means  is  the  Athenian  market  democracy,  in  its 
worst  time,  or,  as  a  French  writer  has  expressed  it,  Le  peuple- 
empereur,  the  people-despot.  It  is,  in  fact,  one  of  the  oppo- 
sites  of  self-government,  as  much  so  as  the  one  expressed 
in  the  favorite  saying  of  Napoleon  I.:  "Ever}^thing  for  the 
people,  nothing  by  the  people."  Self-government  means 
Everything  for  the  people,  and  by  the  people,  considered  as 
the  totality  of  organic  institutions,  constantly  evolving  in  their 
character,  as  all  organic  life  is,  but  not  a  dictatorial  multitude. 
Dictating  is  the  rule  of  the  army,  not  of  liberty  ;  it  is  the 
destruction  of  individuality.  But  liberty,  as  we  have  seen, 
consists  in  a  great  measure  in  protection  of  individuality. 

While  Napoleon   I.   thus    epigrammatically  expressed  the 
essence  of  French  centralization,'  his  chief  antagonist,  William 


'  As  to  the  first  part  of  this  imperial  dictum — tout  pour  le  peuple — we  know 
very  well   how  difficult  it  is  to  know  what  is  for  the  people,  without  institutional 


AND  SELF-GOVERNMENT.  25  I 

Pitt,  even  the  tory  premier,  could  not  help  becoming  the  organ 
of  Anglican  self-government,  as  appears  from  the  anecdote 
which  I  relate  in  full  as  it  was  lately  given  to  the  public, 
because  the  indorsement  by  the  uncompromising  soldiCT  gives 
it  additional  meaning: 

"  A  day  or  two  before  the  death  of  the  Duke  of  Wellington, 
referring  to  the  subject  of  civic  feasts,  he  told  an  incident  in 
the  life  of  Pitt  which  is  worth  recording.  The  last  public 
dinner  which  Pitt  attended  was  at  the  Mansion-house ;  when 
his  health  was  proposed  as  the  savior  of  his  country.  The 
duke  expressed  his  admiration  of  Pitt's  speech  in  reply;  which 
was,  in  substance,  that  the  countr>^  had  saved  herself  by  her 
own  exertions,  and  that  every  other  country  might  do  the 
same  by  following  her  example."' 

Self-government  is  in  its  nature  the  opposite  to  political 
apathy  and  that  moral  torpidity  or  social  indifference  which  is 
sure  to  give  free  play  to  absolutism,  or  else  to  dissolve  the 
whole  polity.  We  have  a  fearful  instance  in  the  later  Roman 
empire.  It  draws  its  strength  from  self-reliance,  as  has  been 
stated,  and  it  promotes  it  in  turn ;  it  cannot  exist  where  there 
is  not  in  each  a  disposition  and  manliness  of  character  will- 
ing and  able  to  acknowledge  it  in  others.  Nothing  strikes 
an  observer,  accustomed  to  Anglican  self-government,  more 
strongly  in  France  than  the  constant  desire  and  tendency 
even  in  the  French  democracy  to  interfere  with  all  things 
and  actions  and  to  leave  nothing  to  self-development.  Self- 
government  requires  politically,  in  bodies,  that  self-rule  which 
moral  self-government  requires  of  the  individual — the  readi- 
ness of  resigning  the  use  of  power  which  we  may  possess, 


indexes  of  public  opinion,  and  how  easy  it  is,  even  for  the  wisest  and  the  best, 
to  mistake  and  substitute  individual,  family,  and  class  interests,  and  passions,  for 
the  wants  of  the  people.  This,  indeed,  constitutes  one  of  the  inherent  and 
greatest  difficulties  of  monarchical  despotism.  A  benevolent  Eastern  despot 
could  not  have  said  it,  for  there  is  no  people,  politically  speaking,  in  Asia;  and 
for  a  European  ruler  it  was  either  hypocritical,  or  showed  that  Napoleon  was 
ignorant  of  the  drift  of  modern  civilization,  of  which  political  development  forms 
so  large  a  portion. 

•  London  Spectator  of  September  18,  1852. 


252 


ON  CIVIL  LIBERTY 


quite  as  often  as  using  it.  Yet  it  would  be  a  great  mistake  to 
suppose  that  self-government  implies  weakness.  Absolutism 
is  weak.  It  can  summon  great  strength  upon  certain  occa- 
sions, as  all  concentration  can ;  but  it  is  no  school  of  strength 
or  character ;  nor  is  a  certain  concentration  by  any  means 
foreign  to  self-government,  but  it  is  not  left  in  the  hands  of 
the  executive  to  use  it  arbitrarily.  Nor  is  it  maintained  that 
self-government  necessarily  leads  in  each  single  case  soonest 
and  most  directly  to  a  desired  end,  especially  when  this  belongs 
to  the  physical  welfare  of  the  people ;  nor  that  absolute  and 
centralized  governments  may  not  occasionally  perform  brilliant 
deeds,  or  carry  out  sudden  improvements  on  a  vast  scale 
which  it  may  not  be  in  the  power  of  self-governments  so 
rapidly  to  execute.  But  the  main  question  for  the  freeman  is, 
which  is  the  most  befitting  to  man  in  his  nobler  state ;  which 
produces  the  best  and  most  lasting  results  upon  the  whole 
and  in  the  long  run ;  which  effects  the  greatest  stability  and 
continuity  of  development;  in  which  is  more  action  of  sound 
and  healthful  life  and  not  of  feverish  paroxysms ;  which  pos- 
sesses the  greatest  tenacity  ?  Is  it  the  brilliant  exploits  which 
constitute  the  grandeur  of  nations  if  surveyed  in  history,  and 
are  there  not  many  brilliant  actions  peculiar  to  self-government 
and  denied  to  centralized  absolutism  ? 

In  history  at  large,  we  observe  that  the  material  and  bril- 
liant influence  of  states  is  frequently  in  accordance  with  their 
size  and  the  concentration  of  their  governments,  but  that  the 
lasting  and  essential  influence  exercised  by  states  is  in  propor- 
tion to  their  vigorous  self-government.  This  influence,  how- 
ever, is  less  visible,  and  requires  analyzing  investigation  to  be 
discovered  and  laid  open.  The  influence  of  England  on  the 
whole  progress  of  our  race  has  been  far  greater  than  that  of 
France,  but  far  less  brilliant  than  that  of  the  period  of  Louis 
XIV.  A  similar  observation  may  be  made  in  all  spheres. 
The  influence  which  the  mind  of  Aristotle  has  had  on  our  race 
far  surpasses  the  effects  of  all  the  brilliant  exploits  of  his  im- 
perial pupil ;  yet  thousands  learn  the  name  of  Alexander  the 
Great,  even  in  our  primary'  schools,  who  never  hear  of  Aris- 


AND  SELF-GOVERNMENT. 


253 


totle.  Nature  herself  furnishes  man  with  illustrations  Cii  this 
fact.  The  organic  life  which  silently  pervades  the  whole  with 
a  creative  power,  is  not  readily  seen,  while  convulsions,  erup- 
tions, and  startling  phenomena  attract  the  attention,  or  cause 
at  least  the  wonder  of  the  least  observing. 

Where  self-government  does  not  exist,  the  people  are  always 
exposed  to  the  danger  that  the  end  of  government  is  lost 
sight  of,  and  that  governments  assume  themselves  as  their 
own  ends,  sometimes  under  the  name  of  the  country,  some 
times  under  the  name  of  the  ruling  house.  Where  self- 
government  exists,  a  somewhat  similar  danger  presents  itself  in 
political  parties.  They  frequently  assume  that  they  themselves 
are  the  end  and  object,  and  forget  that  they  can  stand  on  defen- 
sible ground  only  if  they  subserve  the  country.  Man  is  always 
exposed  to  the  danger  of  substituting  the  means  for  the  ends. 
The  variations  we  might  make  on  the  ancient  Propter  vitam 
Vivendi  perdere  causas,  with  perfect  justice,  are  indeed  endless.' 

Napoleon  I.,  who  well  knew  the  character  of  absolute 
government  and  pursued  it  as  the  great  end  of  his  life,  never- 
theless speaks  of  the  "  impuissance  de  la  force" — the  impo- 
tency  of  power.^  He  felt,  on  his  imperial  throne,  which  on 
another  and  public  occasion  he  called  wood  and  velvet  unless 
occupied  by  him,  and  which  was  but  another  wording  of  Louis 
XIV.'s  L'etat  c'est  moi,  that  which  all  sultans  have  felt  when 
their  janizaries  deposed  them — he  felt  that  of  all  governments 
the    czar-government  is  the  most  precarious.     He  felt  what, 


'  Do  not  all  the  following,  and  many  more,  find  their  daily  or  historical 
applications :  Propter  imperium  imperandi  perdere  causas ;  Propter  ecclesiam 
ecclesise  perdere  causas;  Propter  legem  legis  perdere  causas;  Propter  argumenta 
tionem  argumenti  perdere  causas;  Propter  dictionem  dicendi  perdere  causas? 

'  The  Memoirs  of  Count  Miot,  the  first  volumes  of  which  have  lately  been 
published,  show  more  in  detail  than  any  other  work  with  what  eagerness,  con- 
sistency, and  boldness  Napoleon  I.  endeavored,  step  by  step,  to  break  down 
every  guarantee  of  liberty  which  the  French  people  had  established.  He  did 
this  so  soon  as  he  had  been  made  consul  for  life,  and  succeeded,  through  the 
newly-established  senate  and  council  of  state,  in  nearly  all  cases.  When  he 
attempted  to  abolish  the  trial  by  jury,  supported  as  he  was  by  his  high  law-officers, 
the  institution  was  saved  by  a  few  men,  showing,  on  that  occasion,  a  degree  of 
resolution  which  had  become  rare,  even  at  so  early  a  period. 


254 


ON  CIVIL  LIBERTY 


with  other  important  truths,  Mr.  de  Tocquevillc  had  the  bold- 
ness to  tell  the  national  assembly,  in  a  carefully  considered 
report  of  a  committee,  in  1851,  when  he  said  : 

"  That  people,  of  all  nations  in  the  whole  world,  which  has 
indeed  overthrown  its  government  more  frequently  than  any 
other,  has,  nevertheless,  the  habit,  and  feels  more  than  any 
other  the  necessity,  of  being  ruled. 

"  The  nations  which  have  a  federal  existence,  even  those 
which,  without  having  divided  the  sovereignty,  possess  an 
aristocracy,  or  who  enjoy  provincial  liberties  deeply  rooted  in 
their  traditions — these  nations  are  able  to  exist  a  long  time 
with  a  feeble  government,  and  even  to  support,  for  a  certain 
period,  the  complete  absence  of  a  government.  Each  part  of 
the  people  has  its  own  life,  which  permits  society  to  support 
itself  for  some  time  when  the  general  life  is  suspended.  But 
are  we  one  of  those  nations  ?  Have  we  not  centralized  all 
matters,  and  thus  created  of  all  governments  that  which,  in- 
deed, it  is  the  easiest  to  upset,  but  with  which  it  is  at  the  same 
time  the  most  difficult  to  dispense  for  a  moment?"^ 


'  Mr.  de  Tocqueville  made  this  report  on  the  8th  of  July,  in  the  name  of  the 
majority  of  that  committee,  to  wliich  had.  been  referred  several  propositions 
relating  to  a  revision  of  the  constitution.  It  was  the  time  when  the  constitutional 
term  of  the  president  drew  to  its  end,  and  the  desire  of  annulling  the  ineligibility 
for  a  second  term  became  manifest.  It  was  the  feverish  time  that  preceded  the 
second  of  December,  destined  to  become  another  of  the  many  commentaries  on 
the  facility  with  which  governments  founded  upon  centralization  are  upset,  by 
able  conspiracies  or  by  a  terror-striking  surprise,  such  as  the  revolution  of 
February  had  been,  when  the  Orleans  dynasty  was  expelled,  and  another  proof 
how  easy  it  is  in  such  states  to  obtain  an  acquiescent  majority  or  its  semblance. 

In  connection  with  the  foregoing,  I  must  ask  leave  to  add  the  concluding 
remarks  of  the  Ancien  Regime,  published  since  the  first  edition  of  Civil  Liberty 
was  issued.  I  know  of  no  passage  in  modern  literature  which  reminds  the 
reader  so  directly  of  the  energy  and  gloom  of  Tacitus.  I  quote  from  Mr.  Bon- 
ner's translation,  New  York,  1856,  and  wish  to  say  that  the  whole  work  of  Mr. 
de  Tocqueville  is  a  continued  historical  commentary  of  all  that  is  said  in  the 
present  work  on  Galilean  political  tendencies. 

"When  I  examine  that  nation  (the  French)  in  itself,  I  cannot  help  thinking  it 
is  more  extraordinary  than  any  of  the  events  of  its  history.  Did  there  evei 
appear  on  the  earth  another  nation  so  fertile  in  contrasts,  so  extreme  in  its  acts — 
more  under  the  dominion  of  feeling,  less  ruled  by  principle;  always  better  or 
worse  than  was  anticipated — now  below  the  level  of  humanity,  now  far  above  j 


AXD  SELF-GO VERA'MEA'T.  255 

With  this  extract  I  conclude,  for  the  present,  my  remarks 
on  self-government,  and  with  them  the  enumeration  of  the 
guarantees  and  institutions  which  characterize,  and  in  their 
aggregate  constitute,  Anglican  liberty. 

They  prevail  more  or  less  developed  wherever  the  Anglican 
race  has  spread  and  formed  governments  or  established  dis- 
tinct polities.  Yet,  as  each  of  them  may  be  carried  out  with 
peculiar  consistency,  or  is  subject  to  be  developed  under  the 
influence  of  additional  circumstances,  or  as  a  peculiar  character 
may  be  given  to  the  expansion  of  the  one  or  the  other  element, 
it  is  a  natural  consequence  that  the  system  of  guarantees  which 
we  have  called  Anglican  presents  itself  in  various  forms.  All 
the  broad  Anglican  principles,  as  they  have  been  stated,  are 
necessary  to  us,  but  there  is,  nevertheless,  that  which  we  can 
call  American  liberty — a  development  of  Anglican  liberty  pecu- 
liar to  ourselves.  Those  features  which  may,  perhaps,  be  called 
the  most  characteristic  are  given  in  the  following  chapter. 


a  people  so  unchangeable  in  its  leading  features,  that  it  may  be  recognized  by 
portraits  drawn  two  or  three  thousand  years  ago,  and  yet  so  fickle  in  its  daily 
opinions  and  tastes  that  it  becomes  at  last  a  mystery  to  itself,  and  is  as  much 
astonished  as  strangers  at  the  sight  of  wlirt  it  has  done;  naturally  fond  of  home 
and  routine,  yet,  once  driven  forth  and  forced  to  adopt  new  customs,  ready  to 
carry  principles  to  any  lengths,  and  to  dare  anything;  indocile  by  disposition, 
but  better  pleased  with  the  arbitrary  and  even  violent  rule  of  a  sovereign  than 
with  a  free  and  regular  government  under  its. chief  citizens;  now  fixed  in  hos- 
tility to  subjection  of  any  kind,  now  so  passionately  wedded  to  servitude  that 
nations  made  to  serve  cannot  vie  with  it ;  led  l)y  a  thread  so  long  as  no  word 
of  resistance  is  spoken,  wholly  ungovernable  when  the  standard  of  revolt  has 
been  raised — thus  always  deceiving  its  masters,  who  fear  it  too  much  or  too  little  ; 
never  so  free  that  it  cannot  be  subjugated,  nor  so  kept  down  that  it  cannot  break 
the  yoke;  qualified  for  every  pursuit,  but  excelling  in  nothing  but  war;  moie 
prone  to  worship  chance,  force,  success,  eclat,  noise,  than  real  glory;  endowed 
with  more  heroism  than  virtue,  more  genius  than  common  sense;  better  adapted 
for  the  conception  of  grand  designs  than  the  accomplishment  of  gi'eat  enterprises; 
the  most  brilliant  and  the  most  dangerous  nation  of  Europe,  and  the  one  that  is 
surest  to  inspire  admiration,  hatred,  terror,  or  pity,  but  never  indifference? 

"  No  naf.ion  but  such  a  one  as  this  could  give  birth  to  a  revolution  so  sudden, 
so  radical,  so  impetuous  in  its  course,  and  yet  so  full  of  missteps,  contradictory 
facts,  and  conflicting  examples.  The  French  could  not  have  done  it  but  for  the 
reasons  I  have  alleged ;  but,  it  must  be  admitted,  even  these  reasons  would  not 
suffice  to  explain  such  a  revolution  in  any  country  lut  France." 


2S6  ON  CIVIL  LIBERTY 


CHAPTER    XXII. 


AMERICAN     LIBERTY. 


American  liberty  belongs  to  the  great  division  of  Anglican 
liberty.  It  is  founded  upon  the  checks,  guarantees,  and  self- 
government  of  the  Anglican  race.'  The  trial  by  jury,  the 
representative  government,  the  common  law,  self-taxation, 
the  supremacy  of  the  law,  publicity,  the  submission  of  the 
army  to  the  legislature,  and  whatever  else  has  been  enumer- 
ated, form  part  and  parcel  of  our  liberty.  There  are,  how- 
ever, features  and  guarantees  Avhich  are  peculiar  to  ourselves, 
and  which,  therefore,  we  may  say  constitute  American  liberty. 
They  may  be  summed  up,  perhaps,  under  these  heads :  repub- 
lican federalism,  strict  separation  of  the  state  from  the  church, 
greater  equality  and  acknowledgment  of  abstract  rights  in  the 
citizen,  and  a  more  popular  or  democratic  cast  of  the  whole 
polity. 

The  Americans  do  not  say  that  there  can  be  no  liberty  with- 
out republicanism,  nor  do  they,  indeed,  believe  that  wherever 
a  republican  or  kingless  government  exists,  there  is  liberty. 
The  founders  of  our  own  independence  acknowledged  that 
freedom  can  exist  under  a  monarchical  government,  in  the 
very  act  of  their  declaration  of  independence.  Throughout 
that  instrument  the  Americans  are  spoken  of  as  freemen  whose 


'  We  have  discussed  the  trial  by  jury,  and  even  the  grand  jury,  as  elements  of 
Anglican  liberty.  I  am  now  obliged  to  add,  that  when  this  page  was  correcting 
for  the  press,  the  author  learned  that  the  state  of  Michigan  had  passed  a  law  by 
which,  after  the  I2th  day  of  April,  1859,  the  grand  jury  is  to  be  dispensed  with 
as  an  ordinary  instrument  of  criminal  proceeding,  though  power  is  reserved  to 
the  judges  to  resort  to  it  in  certain  special  cases.  The  people  of  Michigan  have 
thus  shown  an  inclination  toward  the  French  system.  French,  and  continental 
European  lawyers  in  general  have  an  aversion  to  the  grand  jury. 


AND  SELF-GOVERNMENT.  257 

rights  and  liberties  England  had  unwarrantably  invaded.  It 
rests  all  its  assertions  and  all  the  claimed  rights  on  the  liberty 
that  had  been  enjoyed,  and,  after  a  long  recital  of  deeds  of 
misrule  ascribed  to  the  king,  it  says :  "  A  prince,  whose 
character  is  thus  marked  by  every  act  which  may  define  a 
tyrant,  is  unfit  to  be  the  ruler  of  a  free  people."  It  broadly 
admits,  therefore,  that  a  free  people  may  have  a  monarch,  and 
that  the  x\mericans  wefe,  and  considered  themselves,  a  free 
people  before  they  claimed  to  form  a  separate  nation. 

Nevertheless  it  will  be  denied  by  no  one  that  the  Americans 
believe  that  to  be  the  happiest  political  state  of  things  in  which 
a  republican  government  is  the  fittest ;  nor  that  republicanism 
has  thoroughly  infused  itself  into  all  their  institutions  and 
views.  This  republicanism,  though  openly  pronounced  at  the 
time  of  the  revolution  only,  had  been  long  and  historically 
prepared,  by  nearly  all  the  institutions  and  the  peculiarly 
fortunate  situation  of  the  colonies,  or  it  may  be  said  that  the 
republican  elements  of  British  self-government  found  a  pecu- 
liarly favorable  soil  in  America  from  the  first  settlements. 

A  fault  of  England,  to  speak  from  an  English  point  of  view, 
was  of  great  service  to  American  republicanism.  England 
never  created  a  colonial  aristocracy.  Had  she  sprinkled  this 
country  with  a  colonial  peerage  and  put  this  peerage  in  some 
vital  connection  with  the  peerage  of  Great  Britain, — for  instance, 
had  she  allowed  the  colonial  peers  to  elect  representative  peers 
to  sit  in  the  British  house  of  lords,  as  is  the  case  with  Scot- 
tish peers,  and  had  she  given  some  proportionate  precedence 
to  American  noblemen,  e.g.,  had  she  allowed  an  American 
duke  to  take  rank  with  a  British  earl, — she  would  have  had  a 
strong  support  in  this  country  at  the  time  of  the  revolution. 
Possibly,  we  would  have  had  not  only  a  simple  war  of  inde- 
pendence, but  a  civil  war,  and  our  so-called  revolution,  which 
was  no  revolution  in  the  sense  in  which  we  take  the  word  when 
we  apply  it  to  the  revolutions  of  England  and  France,  and 
which  in  German  is  called  an  Abfall,  (severance,)  must  have 
had  a  far  different  character.  It  was  one  of  our  great  bless- 
ings that  we  were  not  obliged  to  pass  through  an  internal  con- 

17 


258  ON  CIVIL  LIBERTY 

vulsion  in  order  to  establish  independence  and  republican  free- 
dom. It  was  a  blessing,  a  fortune,  vouchsafed  us,  not  made 
by  us — a  fact  which  we  must  never  forget  when  we  compare 
our  struggle,  or  that  of  the  Netherlands,  with  the  real  revo- 
lutions of  other  countries,  if  we  desire  to  be  just. 

But  it  is  not  only  republicanism  that  forms  one  of  the  prom- 
inent features  of  American  liberty ;  it  is  representative  repub- 
licanism and  the  principle  of  confederation  or  federalism,^ 
which  must  be  added,  in  order  to  express  this  principle  cor- 
rectly. We  do  not  only  consider  the  representative  principle 
necessary  in  all  our  states  in  their  unitary  character,  but  the 
framers  of  our  constitution  boldly  conceived  a  federal  republic, 
or  the  application  of  the  representative  principle,  with  its  two 
houses,  to  a  confederacy.  It  was  the  first  instance  in  history. 
The  Netherlands,  which  served  our  forefathers  as  models  in 
many  respects,  even  in  the  name  bestowed  on  our  confederacy, 
furnished  them  with  no  example  for  this  great  conception.  It 
is  the  chief  American  contribution  to  the  common  treasures 
of  political  civilization.  It  is  that  by  which  America  will 
influence  other  parts  of  the  world  more  than  by  any  other 
political  institution  or  principle.  Already  are  voices  heard 
in  Australia  for  a  representative  federal  republic  like  ours. 
Switzerland,  so  far  as  she  has  of  late  reformed  her  federal  con- 
stitution, has  done  so  in  avowed  imitation  of  the  federal  pact 
of  our  Union.  I  consider  the  mixture  of  wisdom  and  daring, 
shown  in  the  framing  of  our  constitution,  as  one  of  the  most 
remarkable  facts  in  all  history.  Our  frame  of  government, 
then,  is  justly  called  a  federal  republic,  with  one  chief  magis- 
trate elected  by  what  the  Greeks  called,  in  politics,  the  Koi- 
non,  the  Whole,  with  a  complete  representative  government 
for  that  whole,  a  common  army,  a  judiciary  of  the  Union,  and 
with  the  authority  of  taxing  the  whole.  It  is  called  by  no  one 
a  league: 

Of  the  strict  separation  of  the  church  from  the  state,  in  all 
the  federated  states,  I  have  spoken  already.     The  Americans 


'  Federalism  is  taken  here,  of  course,  in  its  philosophical  and  not  in  its  party 
sense. 


AXD  SELF-GOVERNMENT.  259 

consider  it  as  a  legitimate  consequence  of  the  liberty  of  con- 
science. They  beheve  that  the  contrary  would  lead  to  dis- 
astrous results  with  reference  to  religion  itself,  and  it  is  un- 
deniable that  another  state  of  things  could  not  by  possibility 
have  been  established  here.  We  believe,  moreover,  that  the 
great  mission  which  this  country  has  to  perform,  with  refer- 
ence to  Europe,  requires  this  total  divorce  of  state  and  church 
(not  religion.)^  Doubtless,  this  unstinted  liberty  leads  to 
occasional  inconvenience ;  even  the  multiplicity  of  sects  itself 
is  not  free  from  evils ;  but  how  would  it  be  if  this  divorce  did 
not  exist?  The  Americans  cling  with  peculiar  fervor  to  this 
very  principle. 

We  carry  the  principle  of  political  equality  much  farther 
than  any  free  nation.  We  had  no  colonial  nobility,  although 
some  idea  of  establishing  it  was  entertained  in  England  when 
the  revolution  broke  out,  and  the  framers  of  the  constitution 
took  care  to  forbid  every  state,  and  the  United  States  collect- 
ively, from  establishing  any  nobility.  Even  the  establishment 
of  the  innocent  Cincinnati  Society  gave  umbrage  to  many.^ 
We  have  no  right  of  primogeniture.^     This  equality  has  more 


'  I  lately  saw  a  pamphlet,  written  by  an  American  minister,  in  which  the  Con- 
stitution of  the  United  States  was  called  atheistical — an  expression  I  have  seen 
before.  I  do  not  pretend  exactly  to  understand  its  meaning.  I  suppose,  how- 
ever, that  the  word  atheistical  is  taken  in  this  case  as  purely  negative,  and  as 
equivalent  to  not  mentioning  God,  not,  of  course,  as  equivalent  to  reviling  the 
deity.  Even  in  this  more  moderate  sense,  however,  the  expression  seems  to  me 
surprising.  There  was  a  time  when  every  treaty,  nay,  every  bill  of  lading,  began 
with  the  words.  In  the  name  of  the  Holy  Trinity,  and  every  physician  puf  the 
alpha  and  omega  at  the  top  of  his  recipe.  Whatever  the  sources  may  have  been 
from  which  these  usages  sprang,  I  believe  it  will  be  admitted  that  the  modem 
usage  is  preferable,  and  that  it  does  not  necessarily  indicate  a  diminished  zeal. 
The  most  religious  among  the  framers  may  not  have  thought  of  placing  the  name 
of  God  at  the  head  of  our  constitution,  for  the  very  reason  that  God  was  before 
their  eyes,  and  that  this  occasion  did  not  suggest  to  them  the  idea  of  specially 
expressing  their  belief.     Nee  deus  intersit  nisi  dignus  vindice  nodus. 

'  In  Europe,  where  an  accurate  knowledge  of  the  American  state  of  things  did 
not  exist,  it  was,  I  believe,  universally  considered  as  the  beginning  of  a  new 
nobility,  and  pointed  out  as  a  glaring  inconsistency. 

3  We  can  do  entirely  without  it  as  to  property  in  land.  Our  abundance  of 
land  djes  not  require  it;  but  there  are  countries  in  which  the  constant  parcelling 


26o  ON  CIVIL   LIBERTY 

and  more  developed  itself,  and  all  states  I  believe  have  adopted 
the  principle  of  universal  suffrage.  Property  qualification  for 
voting  does  not  exist  any  longer,  and  for  being  elected  it  exists 
in  very  few  states.  The  Constitution  of  the  United  States  pro- 
vides for  representation  in  the  lower  house,  according  to  num- 
bers, except  that  slave  property  is  represented. 

But  here  it  must  be  observed  that,  however  unqualifiedly 
the  principle  of  political  equality  is  adopted  throughout  the 
whole  country  with  reference  to  the  white  population,  it  stops 
short  with  the  race.  Property  is  not  allowed  to  establish  any 
difference,  but  color  is.  Socially  the  colored  man  is  denied 
equality  in  all  states,  and  politically  he  is  so  in  those  states 
in  which  the  free  colored  man  is  denied  the  right  of  voting, 
and  where  slavery  exists.  I  believe  I  may  state  as  a  fact 
that  the  stanchest  abolitionist,  who  insists  upon  immediate 
manumission  of  all  slaves,  does  not  likewise  insist  upon  an 
immediate  admission  of  the  whole  manumitted  population 
to  a  perfect  political  equality.  In  this,  however,  I  may  be 
mistaken.' 

Two  elements  constitute  all  human  progress,  historical  de- 
velopment and  abstract  reasoning.  It  results  from  the  very 
nature  of  man,  whom  God  has  made  an  individual  and  a  social 
being.  His  historical  development  results  from  the  continuity 
of  society.*  Without  it,  without  traditional  knowledge  and 
institutions,  without  education,  man  would  no  longer  be  man  ; 
without  individual  reasoning,  without  bold  abstraction,  there 


of  land  led  to  such  a  ruinous  subdivision  that  the  governments  were  obliged  to 
establish  a  minimum  beyond  which  land  shall  not  be  allowed  to  be  divided,  and 
which,  thus  undivided,  goes  either  to  the  oldest  or  the  youngest  of  the  sons.  The 
late  president  von  Vincke,  one  of  the  most  distinguished  Prussian  statesmen, 
mentioned  in  an  elaborate  report  on  the  extreme  division  of  land,  that  there  had 
been  a  lawsuit  in  the  Rhenish  province  about  a  square  foot  or  two  of  vineyard 
land.  Such  cases,  probably,  are  of  frequent  occurrence  in  China.  What  would 
be  said,  in  those  densely-peopled  countries,  of  our  Virginia  or  worm-fences,  which 
waste  a  strip  of  land  five  feet  wide  throughout  the  South  and  West? 

'  [Since  Dr.  Lieber  published  these  words,  in  1859,  the  system  of  slavery  has 
disappeared,  and  perfect,  or  nearly  perfect,  political  equality  of  all  colors  exists.] 

*  "JTiis  is  treated  more  fully  in  the  Political  Ethics. 


AND  SELF-GOVERNMENT.  26 1 

uould  be  no  advancement.  Now,  single  men,  entire  societies, 
whole  periods,  will  incline  more  to  the  one  or  to  the  other 
element,  and  both  present  themselves  occasionally  in  indi- 
viduals and  entire  epochs  as  caricatures.  One-sidedness  is  to 
be  shunned  in  this  as  in  all  other  cases  ;  perfection,  wisdom, 
results  from  the  well-balanced  conjunction  of  both,  and  I  do 
not  know  any  nobler  instance  of  this  wisdom  than  that  which 
is  presented  by  the  men  of  ourw  revolution.  They  were  bold 
men,  as  I  have  stated  already ;  they  went  fearlessly  to  work, 
and  launched  upon  a  sea  that  had  as  yet  been  little  navigated, 
when  they  proposed  to  themselves  the  establishment  of  a  re- 
public for  a  large  country.  Yet  they  changed  only  what  im- 
peratively required  change ;  what  they  retained  constituted  an 
infinitely  greater  portion  than  that  which  they  changed.  It 
does  not  require  an  extraordinary  power  of  abstraction,  nor 
very  profound  knowledge,  to  imagine  what  rhust  have  been 
the  consequence  had  they  upset  the  whole  system  in  which 
they  lived,  and  allowed  their  ill  will  toward  England,  or  a 
puerile  vanity,  to  induce  them  to  attempt  an  entirely  new  state 
of  things. 

They,  on  the  contrary,  adopted  every  principle  and  institu- 
tion of  liberty  that  had  been  elaborated  by  the  English.  They 
acted  like  the  legislators  of  antiquity.  Had  they  acted  other- 
wise, their  constitution  must  have  proved  a  still-born  child,  as 
so  many  other  constitutions  proclaimed  since  their  days  have 
done.  Their  absence  of  all  conceit,  and  their  manly  calmness, 
will  forever  redound  to  their  honor. 

It  seems  to  me  that  while  the  English  incline  occasionally 
too  much  to  the  historical  element,  we,  in  turn,  incline  occa- 
sionally too  much  toward  abstraction. 

However  this  may  be,  it  is  certain  that  we  conceive  of  the 
rights  of  the  citizen  more  in  the  abstract  and  more  as  attri- 
butes of  his  humanity,  so  long  as  this  means  our  own  white 
race.  Beyond  it  the  abstraction  ceases,  so  much  so  that  the 
supreme  court  lately  decided  that  people  of  color  (although 
they  were  unquestionably  subjects  to  the  King  of  England 
before  the  independence  of  the  United  States)  are  not  citizens 


262  ON  CIVIL  LIBERTY 

in  the  sense  of  the  constitution,'  and  that  several  free  states 
have  enacted  laws  against  the  ingress  of  people  of  color,  which 
seem  to  be  founded  exclusively  on  the  power  which  the  white 
race  possesses  over  the  colored,  and  which  elicit  little  exami- 
nation because  the  first  basis  of  all  justice,  sympathy,  is  want- 
ing between  the  two  races.^ 

From  this  conception  of  the  citizenship — this  carrying  of 
the  ancient  jus  ante  omnia  jura  natum,  so  long  as  it  relates  to 
our  own  race,  much  farther  than  the  English  do — arises  the 
fact  that  in  nearly  all  states  universal  suffrage  has  been  estab- 
lished, while  in  England  the  idea  of  class  representation  much 
more  prevails.  The  Americans  do  not  know,  I  believe,  in  a 
single  case  the  English  rate-paying  suffrage ;  but  it  must  be 
recorded  that  the  serious  misrule  of  American  cities  has  in- 
duced the  opinion  of  many  reflecting  men  that  populous  cities 
cannot  be  ruled  by  bare  universal  suffrage ;  since  universal 
suffrage,  applied  to  city  governments,  gives  to  the  great 
majority,  that  do  not  own  houses  or  land,  the  right  to  raise 
and  dispose  of  the  taxes  solely  levied  on  real  property. 

On  the  other  hand,  it  appears  to  Americans  a  flagrant  act  to 
disfranchise  entire  corporate  constituencies  for  gross  pervading 
bribery,  as  has  been  repeatedly  done  in  English  history.  In- 
deed the  right  of  voting  has  been  often  pronounced  in  England 
a  vested  right  of  property. 

I  have  also  stated  that  our  whole  government  has  a  more 
popular  cast  than  that  of  England,  and  with  reference  to  this 
fact,  as  well  as  to  the  one  mentioned  immediately  before  it,  I 
would  point  out  the  following  farther  characteristics  of  Ameri- 
can liberty. 

We  have  established  everywhere  voting  by  ballot.  There 
is  an  annually  increasing  number  of  members  voting  in  the 
English  commons  for  the  ballot.  It  is  desired  there  to  pre- 
vent intimidation.    Probably  it  would  have  that  effect  in  Eng- 


'  The  Dred  Scott  case,  already  so  famous,  but  which  will  become  far  mora 
famous  still  in  the  course  of  our  history. 
•  See  p.  260,  note  i. 


AND  SELF-GOVERNMENT.  263 

land,  but  certainly  not  in  such  a  degree  as  the  English  seem 
to  expect.  The  ballot  does  not  necessarily  prevent  the  vote 
of  a  person  from  being  known,^  Although  the  ballot  is  so 
strongly  insisted  upon  in  America,  it  is  occasionally  entirely 
lost  sight  of^ 

"  Tickets"  printed  on  paper  whose  color  indicates  the  party 
which  has  issued  it,  are  the  most  common  things ;  and,  in  the 
place  of  my  former  residence,  it  happened  some  years  ago  that 
party  feeling  ran  to  such  a  height,  that,  in  order  to  prevent 
melancholy  consequences,  the  leaders  came  to  an  agreement. 
It  consisted  in  this :  that  alternate  hours  should  be  assigned 
to  the  two  parties,  during  which  the  members  of  one  party 
only  should  vote.  This  open  defeat  of  the  ballot  was  carried 
out  readily  and  in  good  faith. 

The  Constitution  of  the  United  States,  and  those  of  all  the 
states,  provide  that  the  houses  of  the  legislatures  shall  keep 
their  journals,  and  that  on  the  demand  of  a  certain,  not  very 
large,  number  of  members,  the  ayes  and  noes  shall  be  recorded. 
The  ayes  and  noes  have  sometimes  a  remarkable  effect.  It  is 
recorded  of  Philip  IV.  of  Spain,3  that  he  asked  the  opinion  of 
his  council  on  a  certain  subject.  The  opinion  was  unani- 
mously adverse ;  whereupon  the  monarch  ordered  every  coun- 
sellor to  send  in  his  vote  signed  with  his  name,  and  every  vote 
turned  out  to  be  in  favor  of  the  proposed  measure.  The  ayes 
and  noes  have  unfortunately  sometimes  a  similar  effect  with 
us.  Still,  this  peculiar  voting  may  operate  upon  the  timid  as 
often  beneficially  as  otherwise ;    at  any  rate,  the  Americans 


«  There  is  an  instructive  article  on  voting  in  the  Edinburgh  Review,  of  Octo- 
ber, 1852,  on  Representative  Reform.  The  writer,  who  justly  thinks  it  all- 
important  that  every  one  who  has  the  right  to  vote  for  a  member  of  parliament 
should  vote,  proposes  written  votes  to  be  left  at  the  house  of  every  voter,  the 
blanks  to  be  filled  by  him,  as  is  now  actually  done  for  parish  elections.  There 
existed  written  votes  in  the  early  times  of  New  England,  and  people  were  fined 
for  not  sending  them.  It  was  not  necessary  to  cany  them  personally  to  the  poll. 
These  written  votes  prevailed  in  the  middle  ages.  For  this  and  other  subjects 
connected  with  elections,  see  the  paper  on  elections  in  the  Appendix. 

»  [The  ballot  is  now  introduced  into  England.] 

'  Coxe's  Memoirs  of  the  Bourbons  in  Spain. 


264  ON  CIVIL  LIBERTY 

believe  that  it  is  proper  thus  to  oblige  members  to  make  their 
vote  known  to  their  constituents. 

We  never  give  the  executive  the  right  of  dissolving  the 
legislature,  nor  to  prorogue  it. 

We  have  never  closed  the  list  of  the  states  composing  the 
Union,  in  which  we  differ  from  most  other  confederacies,  an- 
cient or  modern ;  we  admit  freely  to  our  citizenship  those  who 
are  foreigners  by  birth,  and  we  do  not  believe  in  inalienable 
allegiance.' 


'  The  character  of  the  English  and  of  our  allegiance  is  treated  at  length  in 
the  Political  Ethics.  I  there  took  the  ground  that  even  English  allegiance  is  a 
national  one,  whatever  the  language  of  the  law-books  may  be  to  the  contrary. 
The  following  may  serve  as  a  farther  proof  that  English  allegiance,  after  all,  is 
dissoluble.  It  appears  from  the  New  England  charter,  granted  by  James  I.,  that 
he  claimed,  or  had  the  right  "  to  put  a  person  out  of  his  allegiance  and  protec- 
tion." Page  16,  Compact,  with  the  Charter  and  Laws  of  the  Colony  of  New 
Plymouth,  etc.,  Boston,  1836. 

Had  we  any  nobility,  or  had  we  closed  our  confederacy,  we  must  have  been 
exposed  to  the  troubles  to  which  the  ancient  republics  were  exposed,  and  which 
form  a  leading  feature  through  the  whole  history  of  Rome.  We  acquired 
Louisiana,  and,  with  her  French  population,  she  is  fairly  assimilated  with  our 
great  polity.  She  would  have  been  a  dangerous  cancer  had  we  treated  her  as 
Rome  treated  her  acquisitions,  and  a  war  of  the  Socii,  as  the  Romans  had  it, 
must  ultimately  have  broken  out.  In  this,  then,  we  differ  in  a  marked  way  from 
the  English.  When  Scotland  was  united  to  England,  by  establishing  one  legis- 
lature for  both,  and  when  a  similar  process  took  place  with  reference  to  Ireland, 
a  perfect  assimilation  was  not  the  consequence,  as  had  been  the  case  with  Wales. 
The  non-assimilation  is  still  more  marked  in  the  case  of  the  colonies.  English 
readers  may  possibly  believe  that  a  foreign  author  passes  his  proper  boundary  if 
he  ventures  to  discuss  a  subject  of  the  highest  statesmanship  peculiarly  domestic 
in  its  character,  but  "  the  by-stander  often  sees  the  faults  of  the  men  in  the  ring." 
How  could  we  write  on  foreign  history  were  we  not  allowed  to  judge  of  foreign 
subjects  ?  Nor  is  this  subject  wholly  foreign  to  an  American,  because  he  naturally 
knows  more  of  Canada  than  most  English  do,  and  he  knows  his  ov\'n  colonial 
history.  Thus  justified,  and  making  full  allowance  for  the  difficulties  that  may 
exist,  we  cannot  help  feeling  surprised  that  England,  in  many  other  respects  the 
only  power  that  has  shown  true  liberality  toward  colonies — so  different  from 
Spain  ! — and  with  our  war  of  independence  before  her  eyes,  should  not  think  of 
tying  the  distant  empires  she  creates  in  all  the  portions  of  the  globe,  by  a  repre- 
sentation in  her  parliament,  making  it,  so  far  as  the  colonies  are  concerned,  the 
imperial  congress.  Though  each  distinct  colony  with  a  colonial  self-government 
should  have  but  two  c;  three  representatives  in  the  commons,  representing  the 


AND   SELF-GOVERNMENT.  265 

We  allow,  as  it  has  been  seen,  no  attainder  of  blood. 

We  allow  no  ex  post  facto  laws. 

American  liberty  contains  as  one  of  its  characteristic  ele- 
ments the  enacted  or  written  constitution.  This  feature  dis- 
tinguishes it  especially  from  the  English  polity  with  its  accu- 
mulative constitution. 

We  do  not  allow,  therefore,  our  legislatures  to  be  politically 
"  omnipotent,"  as,  theoretically  at  least,  the  British  parliament 
is.'  This  characteristic,  again,  naturally  led  to  the  right  and 
duty  of  our  supreme  courts  in  the  states,  and  of  the  supreme 
court  of  the  United  States,  to  decide  whether  a  law  passed, 
by  the  legislature  or  by  congress,  is  in  conformity  with  the 
superior  law — the  constitution — or  not ;  in  other  words,  on  the 
constitutionality  of  a  law.  It  has  been  stated  already  that  the 
courts  have  no  power  to  decide  on  the  law  in  general ;  but 
they  decide,  incidentally,  on  the  whole  law,  when  a  specific 
case  of  conflict  between  a  certain  law  and  the  constitution  is 
brought  before  them. 

I  may  add  as  a  feature  of  American  liberty  that  the  Ameri- 
can impeachment  is,  as  I  have  stated  before,  a  political  and 


colony  as  such,  it  seems  that  the  effect  upon  the  consistency  of  the  whole  gigantic 
empire  would  be  distinct,  and  that  such  a  measure  is  the  only  one  that  would 
promise  continued  cohesiveness. 

'  For  the  English  reader  I  would  add  that  the  following  works  ought  to  be 
studied  or  consulted  on  this  subject:  The  Constitution  of  the  United  States,  and 
the  constitutions  of  the  different  states,  which  are  published  from  time  to  time, 
collected  in  one  volume  ;  the  Debates  on  the  Federal  Constitution  ;  The  Federal- 
ist, by  Hamilton,  Madison,  and  Jay;  the  Writings  of  Chief-Justice  Marshall, 
Boston,  1839;  the  History  of  the  Constitution  of  the  United  States,  by  G.  T. 
Curtis,  a  work  of  mark ;  Mr.  Justice  Story's  Commentaries  on  the  Constitution 
of  the  United  States;  Mr.  Calhoun's  and  Mr.  Webster's  Works;  Mr.  Rawle's 
work  on  the  Constitution,  and  Mr.  Frederic  Grimk6's  Considerations  upon  the 
Nature  and  Tendency  of  Free  Institutions,  Cincinnati,  1848.  To  these  may  be 
added  the  Course  of  Lectures  on  the  Constitutional  Jurisprudence  of  the  United 
States,  by  W.  A  Duer,  Boston,  1856,  [and  Pomeroy's  Constitutional  Law,  New 
York,  1868.]  An  entire  literature  of  its  own  has  accumulated,  by  this  time,  on 
the  constitution,  jurisprudence,  and  constitutional  historj*  of  the  United  States, 
The  chief  of  the  enumerated  works  will  suffice  to  lead  the  student  to  the  more 
detailed  works  of  this  department. 


266  ON  CIVIL  LIBERTY 

not  a  penal  institution.     It  seems  to  me  that  I  am  borne  out 
in  this  view  by  the  FederaHst' 

In  conclusion,  I  would  state  as  one  of  the  characteristics  of 
American  liberty  the  freedom  of  our  rivers.  The  unimpeded 
navigation  of  rivers  belongs  to  the  right  of  free  locomotion 
and  intercommunication,  of  which  we  have  treated ;  yet  there 
is  no  topic  of  greater  interest  to  the  historian,  the  economist, 
and  the  statesman,  than  the  navigation  of  rivers,  because, 
though  the  rivers  are  nature's  own  highways,  and  ought  to  be 
as  efficient  agents  of  civilization  as  the  Road  or  the  Mail,  their 
agency  has  been  thwarted  by  the  oppressive  force  of  man,  in 
almost  all  periods  of  our  history.  The  Roman  empire,  doing 
little  indeed  for  commerce  by  comprehensive  statesmanship, 
effected  at  least  a  general  freedom  of  the  rivers  within  its 
territory,  as  a  natural  consequence  of  its  unity.  The  Danube 
became  free,  from  the  interior  of  Germany  to  the  Black  Sea. 
But  the  barbarous  times  which  succeeded  reduced,  once  more, 
the  rivers  to  the  state  of  insecurity  in  which  they  had  been 
before  the  imperial  arm  had  warded  off  intrusion  and  inter- 
ruption. Free  navigation  had  not  even  been  re-established  in 
all  the  larger  empires  of  the  European  continent,  when  the  first 
French  revolution  broke  out.  It  was  one  of  the  most  important 
provisions  of  the  act  of  confederation  agreed  upon  at  Vienna, 
in  1815,  between  the  Germanic  states,  that  immediate  steps 
should  be  taken  to  make  the  river  navigation  in  Germany 
free,  but  the  desired  object  had  not  been  obtained  as  late  as 
in  1848.^     The  long  dispute  about  the  navigation  of  the  river 


'  No.  Ixv. 

As  to  the  parties  in  America,  they  may  fairly  be  said  to  have  little  to  do  with 
civil  liberty,  which  will  be  readily  seen  by  the  so-called  National  Platforms, 
resolved  upon  as  the  true  indexes  of  the  parties  by  the  conventions  held  pre- 
paratory to  the  presidential  elections.  Nor  do  the  names  of  the  parties  indicate 
anything  with  reference  to  Liberty.  The  term  Democratic  has  wholly  lost  its 
original  meaning,  as  used  to  designate  the  party  which  has  taken  it.  Among 
others,  the  Resolutions  published  by  the  different  conventions  in  the  year  1853, 
previous  to  Mr.  Pierce's  election,  and  which  were  drawn  up  with  great  care, 
fully  prove  this. 

'  I  owe  to  the  friendship  of  Mr.  Kapp  (author  of  the  Life  of  Baron  Steuben) 


AND  SELF-GOVERNMENT.  267 

Scheldt  has  become  famous  in  the  history  of  law  and  of  human 
progress.  In  this  case,  however,  a  foreign  power,  the  Nether- 
lands, denied  free  navigation  to  those  in  whose  country  the 
river  rises  and  becomes  navigable.'  Magna  Charta  declares, 
indeed,  what  has  been  called  "  the  freedom  of  the  rivers ;"  but, 
on  the  one  hand,  English  rivers  are,  comparatively  speaking, 
of  little  importance  to  navigation,  and,  on  the  other  hand, 
England  had  not  to  overcome  the  difficulty  which  arises  out 
of  the  same  river  passing  through  different  states.  It  was 
therefore  a  signal  step  in  the  progress  of  our  species  when  the 
wise  framers  of  our  constitution  enacted  that  vessels  bound  to 
or  from  one  state  shall  not  be  obliged  to  enter,  clear,  or  pay 
duties  in  another,^  and  every  one  who  cherishes  his  country 
and  the  essential  interests  of  our  species  must  be  grateful  that 
subsequent  legislation,  and  decisions  by  courts,  have  firmly 
established  3  the  inestimable  right  of  free  navigation  in  a  coun- 
try endowed  with  a  system  of  rivers  more  magnificent  and 
more  benign,  if  left  free  and  open,  than  that  of  any  other 
country.     An  able  writer  and  comprehensive  statesman  says  : 

"  It  was  under  the  salutary  instruction  thus  afforded  by 
the  Scheldt,  and  just  before  the  French  revolution  broke  its 
shackles,  that  our  thirteen  confederated  states  acquired  the 
Mississippi. 

"  In  March,  1785,  Rufus  King,  then  a  delegate  from  Massa- 
chusetts in  the  congress  of  the  confederation,  received  from 


a  book  of  remarkable  interest,  in  many  respects  :  Gottlieb  Mittelberger's  Journey 
to  Pennsylvania  in  the  Year  1750  and  Return  to  Germany  in  1754,  Frankfurt, 
1756.  Mittelberger  was  organist  and  schoolmaster.*  He  was  seven  weeks  on 
his  way  from  Wiirtemberg  to  Rotterdam,  chiefly  on  the  Rhine.  The  Journal  of 
Albert  Diirer,  the  great  painter,  gives  the  same  lamentable  account  of  his  jour- 
ney on  the  Main  and  Rhine. 

*  A  t  me  may  come — I  believe  it  will — when  the  international  law  of  our 
family  of  nations  will  acknowledge  that  those  who  border  on  a  navigable  river 
have  a  right,  by  nature,  to  sail  down  that  river  to  the  sea  without  hindrance,  toll, 
or  inconvenience. 

»  Constitution  of  the  United  States,  section  9. 

3  See,  among  others,  Duer's  Lectures  on  the  Constitutional  Jurisprudence  of 
the  United  States,  2d  edition,  page  258  and  sequ. 


2o8  ON  CIVIL  LIBERTY 

Timothy  Pickering  a  letter  containing  these  emphatic  and 
memorable  words : 

"  'The  water  communications  in  that  country  will  always  be 
in  the  highest  degree  interesting  to  the  inhabitants.  It  seems 
very  necessary  to  secure  the  freedom  of  navigating  these  to 
all  the  iiihabitants  of  all  the  states.  I  hope  we  shall  have  no 
Schcldts  in  that  country.' " 

"The  high  duty  of  carrying  into  effect  that  great  suggestion 
immediately  occupied  the  attention  of  Mr.  King  and  his  asso- 
ciates. The  honor  of  framing  the  clause — which  secures,  '  not 
for  a  day,  but  for  all  time,'  freedom  of  commerce  over  an  un- 
broken net-work  of  navigable  water  spread  out  for  more  than 
sixteen  thousand  miles — was  shared  between  Massachusetts 
and  Virginia,  then  standing  shoulder  to  shoulder,  where  they 
had  stood  throughout  the  Revolution. 

"  The  clause  was  formally  introduced  into  the  congress 
by  Mr.  Grayson,  of  Virginia,  and  seconded  by  Mr.  King,  of 
Massachusetts.  Listen  to  its  words,  so  broadly  national,  so 
purely  American : 

"  '  The  navigable  waters  leading  into  the  Mississippi  and  St. 
Lawrence,  and  the  carrying  places  between  the  same,  shall  be 
common  propetiy,  and  forever  free,  as  well  to  the  inhabit- 
ants of  the  said  country,  as  to  the  citizens  of  the  United 
States,  and  those  of  any  other  states  that  may  be  admitted 
into  the  confederacy — without  any  tax,  duty,  or  impost 
therefor.' 

"  The  clause  was  immediately  incorporated  into  the  ordi- 
nance, and  passed  by  the  congress  on  the  1 3th  day  of  July, 
1787. 

"  Here,  then,  we  behold  the  Magna  Charta  of  the  internal 
navigation  of  America,"  ^  which  we  enjoy,  and  have  first  en- 


'  The  original  is  in  the  possession  of  Dr.  Charles  King,  president  of  Columbia 
College,  New  York. 

»  This  passage  is  copied  from  a  Defence  of  the  Right  and  the  Duty  of  the 
American  Union  to  improve  the  Navigable  Waters,  by  Samuel  B.  Ruggles,  a 
speech  delivered  in  October,  1852.  The  speaker  has  given  his  views  on  this  and 
kindred  topics  more  extensively  in  a  state  paper  of  rare  excellence,  whether  the 


AND  SELF-GOVERNMENT.  269 

joyed,  of  all  confederacies,  ancient  or  modern.  It  gives  the 
absolutely  free  use  of  the  noblest  riv^er  system  extending  over 
a  continent. 


contents,  the  historical  survey  and  statistic  knowledge,  or  the  transparency  of  the 
style  and  language  be  considered.  The  paper  bears  the  title,  Memorial  of  the 
Canal  Board  and  Canal  Commissioners  of  the  State  of  New  York,  asking  for  the 
Improvement  of  the  Lake  Harbors  by  the  General  Government,  Albany,  N.  Y., 
1858,  and  was,  as  such,  adopted  by  the  legislature  of  New  York  and  presented 
to  congress. 

[It  ought  to  be  added,  however,  that  this  ordinance  applied  only  to  the  North- 
west territory,  over  which  the  treaty  of  peace  with  Great  Britain,  in  1783,  gave 
to  the  Confederation  full  power  to  act.  Navigation  within  or  between  the  old 
thirteen  states  was  not  touched  by  this  ordinance.  The  present  freedom  of  navi- 
gable rivers  depends  on  the  constitutional  power  of  Congress  "  to  regulate  com- 
merce with  foreign  nations  and  among  the  several  states,  and  with  the  Indian 
tribes;"  as  well  as  on  the  right  of  governing  the  territories,  conferred  by  the 
constitution.] 


2/0 


ON  CIVIL  LIBERTY 


CHAPTER    XXIII. 

IN   WHAT    CIVIL    LIBERTY   CONSISTS,  PROVED    BY    CONTRARIES. 

I  HAVE  endeavored  to  give  a  sketch  of  Anglican  liberty.  It 
is  the  liberty  we  prize  and  love  for  a  hundred  reasons,  and 
which  we  would  love  if  there  were  no  other  reason  than  that 
it  is  liberty.  We  know  that  it  is  the  political  state  most 
befitting  to  conscious  man.  History  as  well  as  our  own  preg- 
nant times  proves  to  us  the  value  of  those  guarantees,  their 
necessity  if  we  wish  to  see  our  political  dignity  secure,  and 
their  effect  upon  the  stability  of  government,  as  well  as  on  the 
energies  of  the  people.  We  are  proud  of  our  self-government 
and  our  love  of  the  law  as  our  master,  and  we  cling  the  faster 
to  all  these  ancient  and  modern  guarantees,  the  more  we 
observe  that,  wherever  the  task  which  men  have  proposed  to 
themselves  is  the  suppression  of  liberty,  these  guarantees  are 
sure  to  be  the  first  objects  of  determined  and  persevering 
attack.  It  is  instructive  for  the  friend  of  freedom  to  observe 
how  uniformly  and  instinctively  the  despots  of  all  ages  and 
countries  have  assailed  the  different  guarantees  enumerated 
in  the  preceding  pages.  We  can  learn  much  in  all  practical 
matters  by  the  rule  of  contraries.  As  the  arithmetician  proves 
his  multiplication  by  division,  and  his  subtraction  by  addition, 
so  may  we  learn  what  those  who  love  liberty  ought  to  prize, 
by  observing  what  those  who  hate  freedom  suppress  or  war 
against.  This  process  is  made  peculiarly  easy  as  well  as 
interesting  at  this  very  period,  when  the  government  of  a 
large  nation  is  avowedly  engaged  in  suppressing  all  liberty 
and  in  establishing  the  most  uncompromising  monarchical 
absolutism. 

I  do  not  know  a  single  guarantee  contained  in  the  foregoing 


AA'D  SELF-GOVERNMENT.  2/1 

pages,  which  might  not  be  accompanied  by  a  long  historical 
commentary  showing  how  necessary  it  is,  from  the  fact  that  it 
has  been  attacked  by  those  who  are  plainly  and  universally 
acknowledged  as  having  oppressed  liberty  or  as  having  been 
at  least  guilty  of  the  inchoate  crime.  It  is  a  useful  way  to 
turn  the  study  of  history  to  account,  especially  for  the  youth 
of  free  nations.  It  turns  their  general  ardor  to  distinct  reali- 
ties, and  furnishes  the  student  with  confirmations  by  facts. 
We  ought  always  to  remember  that  one  of  the  most  efficient 
modes  of  learning  the  healthful  state  of  our  body  and  the 
normal  operation  of  its  various  organs  consists  in  the  study 
of  their  diseased  states  and  abnormal  conditions.  The  patho- 
logic method  is  an  indispensable  one  in  all  philosophy  and 
in  politics.  The  imperial  time  of  Rome  is  as  replete  with 
pathetic  lessons  for  the  statesman  as  the  republican  epoch. 

It  would  lead  me  far  beyond  the  proper  limits  of  this  work, 
were  I  to  select  all  the  most  noted  periods  of  usurpation,  or 
those  times  in  which  absolutism,  whether  monarchical  or 
democratic,  has  assumed  the  sway  over  liberty,  and  thus  to 
try  the  gauge  of  our  guarantees.  It  may  be  well,  however,  to 
select  a  few  instances. 

In  doing  so  I  shall  restrict  myself  to  instances  taken  from 
the  transactions  of  modern  nations  of  our  own  race;  but  the 
student  will  do  well  to  compare  the  bulk  of  our  liberty  with 
the  characteristics  of  ancient  and  modern  despotism  in  Asia, 
and  see  how  the  absence  of  our  safeguards  has  there  always 
prevented  the  development  of  humanity  which  we  prize  so 
highly.  He  ought  then  to  compare  this  our  own  modern 
liberty  with  what  is  more  particularly  called  antiquity,  and  see 
in  what  we  excel  the  ancients  or  fall  behind  them,  and  in  what 
that  which  they  revered  as  liberty  differed  from  ours.  He 
ought  to  keep  in  mind  our  guarantees  in  reading  the  history 
of  former  free  states,  and  of  the  processes  by  which  they  lost 
their  liberty,  or  of  the  means  to  which  the  enemies  of  liberty 
have  resorted,  from  those  so  masterly  delineated  by  Aristotle, 
down  to  Dr.  Francia  and  those  of  the  present  time,  and  he 
ought  again  to  compare  our  broadcast  national   liberty  with 


272 


ON  CIVIL  LIBERTY 


the  liberties  of  the  feudal  age.  He  ought,  lastly,  to  present 
clearly  to  his  mind  the  psychologic  processes  by  which  liberty 
has  been  lost — by  gratitude,  hero-worship,  impatience,  indo- 
lence, permitting  great  personal  popularity  to  overshadow 
institutions  and  laws,  hatred  against  opposite  parties  or  classes, 
denial  of  proper  power  to  government,  the  arrogation  of  more 
and  more  power,  and  the  gradual  transition  into  absolutism ; 
by  local  jealousies,  by  love  of  glory  and  conquest,  by  passing 
unwise  laws  against  a  magnified  and  irritating  evil — laws  which 
afterwards  serve  to  oppress  all,  by  recoiling  oppression  of  a 
part,  by  poverty  and  by  worthless  use  of  wealth,  by  sensuality 
and  that  indifference  which  always  follows  in  its  train. 

Liberty  of  communion  is  one  of  the  first  requisites  of  free- 
dom. Wherever,  therefore,  a  government  struggles  against 
liberty,  this  communion  forms  a  subject  of  peculiar  attention. 
Not  only  is  liberty  of  the  press  abolished,  but  all  communion 
is  watched  over  by  the  power-holder,  or  suppressed  as  far  as 
possible.  The  spy,  the  mouchard,  the  delator,  the  informer, 
the  sycophant,  are  sure  accompaniments  of  absolutism.^  The 
British  administration  under  Charles  II.  and  James  II.  looked 
with  a  jealous  eye  on  the  "  coffee-houses,"  and  occasionally 
suppressed  them.  One  of  the  first  things  done  by  the  French 
minister  of  police,  after  the  second  of  December,  was  to  close 
a  number  of  "  cabarets"  at  Paris,  and  to  put  all  France  under 
surveillance.  This  may  become  necessary  for  a  time  under 
pressing  circumstances,  which  may  place  a  government  in  the 
position  of  a  general  in  a  beleaguered  city,  but  it  is  not  liberty; 
it  is  the  contrary,  and  if  the  measure  is  adopted  as  a  per- 
manent one  it  becomes  sheer  despotism.  So  soon  as  Louis 
Napoleon  had  placed  himself  at  the  head  of  an  absolute 
government,  he  not  only  abolished  the  liberty  of  the  press, 
but  he  went  much  farther,  as  we  have  seen ;  he  placed  the 
printing-presses  themselves  and  the  sale  of  type  under  the 


'  Much  that  relates  to  the  history  of  the  spy  and  informer,  in  ancient  and 
modern  times,  may  be  found  in  the  second  volume  of  Political  Ethics,  where 
the  citizen's  duty  of  informing  is  discussed. 


AND  SELF-GOVERNMENT.  273 

police,  and  ordered  that  no  press  with  the  nccessar\'  printing 
materials  should  be  sold  or  change  hands  without  previous 
information  being  given  to  the  police. 

While  it  is  a  characteristic  of  our  liberty  that  the  public 
funds  are  under  the  peculiar  guardianship  of  the  popular  house 
of  the  legislature,  and  that  short  appropriations  are  made  for 
distinct  purposes,  especially  for  the  army  and  navy,  all  govern- 
ments hostile  to  liberty  endeavor  to  rule  without  appropria- 
tions, or,  if  this  is  not  feasible,  by  having  the  appropriations 
made  for  a  long  term  and  not  for  detailed  purposes.  The  last 
decree  of  Napoleon  III.,  relating  to  this  subject,  is  that  the 
legislative  corps  must  vote  the  budget  of  each  department  en 
bloc,  that  is,  in  a  lump,  and  either  wholly  reject  or  adopt  it, 
without  amendment.  English  histoiy  furnishes  a  long  com- 
mentary on  this  point  of  appropriations.  Charles  I.  lost  his 
head  in  his  struggle  for  a  government  without  parliament, 
which  then  meant,  in  a  great  measure,  without  regular  appro- 
priations, or  the  assumption  of  ruling  by  taxation  on  royal 
authority.  Wherever  on  the  European  continent  it  has  been 
the  endeavor  to  establish  a  constitutional  government,  the 
absolutists  have  complained  of  the  "  indecenc}'"  of  maknng 
governments  annually  "beg"  for  supplies. 

Liberty  requires  the  supremacy  of  the  law;  the  supremacy 
of  the  law  requires  the  subordination  of  the  army  to  the  legis- 
lature and  the  whole  civil  government.  The  Declaration  of 
Rights  enumerates  the  raising  and  keeping  a  standing  army 
without  consent  of  parliament,  as  one  of  the  proofs  that  James 
II.  had  endeavored  *'  to  subvert  and  extirpate  the  laws  and 
liberties"  of  England  ;  while  all  governments  reluctantly  yield- 
ing to  the  demands  of  liberty  have  struggled  to  prevent  at 
least  the  obligation  of  the  army  to  take  the  oath  of  fidelity  to 
the  constitution.  The  army  is  studiously  separated  from  the 
people,  and  courted  as  peculiarly  allied  to  the  prince.  Napo- 
leon I.  treated  the  army  as  the  church  was  often  treated  in  the 
middle  ages — the  main  body  in  the  state ;  and  Napoleon  III. 
lately  said  in  a  solemn  speech  that  he  desired  to  present  the 
new  empress  to  the  people  and  the  army,  as  if  it  formed  at 

i8 


274 


ON  CIVIL    LIBERTY. 


least  one-half  of  the  state  and  were  a  body  separate  from  the 
people.  When  he  gave  eagles  to  the  whole  army  at  what  is 
called  the  fete  of  the  eagles,  in  1852,  he  said:  "The  history 
of  nations  is  in  a  great  measure  the  history  of  armies,"  and 
continued  in  a  strain  sounding  as  if  it  belonged  to  the  times 
of  the  migration  of  nations.^ 

But  English  and  American  freemen  will  never  forget  that 
the  highest  glory  of  a  great  people,  and  that  by  which  it 
most  signally  performs  the  task  assigned  to  it  in  the  further- 
ance of  our  race,  are  its  literature  and  its  law,  if  this  con- 
sists in  a  wise  system  founded  on  justice,  humanity,  and 
freedom. 

The  supremacy  of  the  law  is  an  elementary  requisite  of 
liberty.  All  absolutism  spurns,  and  has  a  peculiar  dislike  of, 
the  idea  of  fundamental  laws.  Aristotle  enumerates  as  the 
fourth  species  of  government  that  in  which  the  multitude  and 
not  the  law  is  the  supreme  master;  James  II.  claimed  the  dis- 
pensing power,  and  Louis  Napoleon  affirmed,  when  yet  presi- 
dent under  the  republican  constitution  which  prohibited  his 
re-election,  that  if  the  people  wanted  him  to  continue  in  office 
he  should  do  it  nevertheless,  and  all  his  adherents  declared 


I  I  quote  the  whole  passage  of  this  stupendous  allocution,  which  no  historian 
or  political  philosopher,  had  he  discovered  it,  as  Cuvier  found  and  construed 
remains  of  animals,  would  have  assigned  to  the  middle  of  the  nineteenth  cen- 
tury. ^Yhat  becomes  of  England  and  the  United  States  if  the  essence  of  history 
does  not  lie  in  the  development  of  the  nation  and  especially  of  its  institutions? 
The  following  are  the  exact  words : 

"  Soldiers,  thft  history  of  nations  is  in  great  part  the  history  of  armies.  On 
their  success,  or  on  their  reverses,  depends  the  fate  of  civilization  and  of  the 
country.  When  they  are  vanquished,  there  is  either  invasion  or  anarchy;  when 
victorious,  glory  or  order. 

"  In  consequence,  nations,  like  armies,  pay  a  religious  veneration  to  the  em- 
blems of  military  honor,  which  sum  up  in  themselves  a  whole  past  existence  of 
struggles  and  of  triumphs. 

"  The  Roman  eagle,  adopted  by  the  Emperor  Napoleon  at  the  commencement 
of  the  present  century,  was  the  most  striking  signification  of  the  regeneration 
and  grandeur" of  France;"  and  so  on. 

When  the  democratic  Cresar  reviewed  the  guards,  before  they  started  for  the 
Crimen,  in  1855,  he  called  the  army  the  nobility  of  the  French  nation. 


AND  SELF-GOVERNMENT. 


275 


that  the  people  being  the  masters  could  do  as  they  liked, 
which  reminds  us  of  the  Athenians  who  impatiently  ex- 
claimed :  "Can  we  not  do  what  we  list?"  when  told  that  there 
was  a  law  forbidding  what  they  intended  to  do. 

The  division  of  power,  which  was  already  observed  as  an 
important  point  in  government  by  "  the  master  of  all  that 
know,"  is  invariably  broken  down  as  far  as  possible  by  the 
absolutists.  The  judiciary  is  interfered  with  whenever  its  slow 
procedure  or  its  probable  results  irritate  the  power-holder. 
The  history  of  all  nations,  from  the  earliest  times  to  Napo- 
leon III.'s  taking  the  trial  on  the  legality  of  the  Orleans 
spoliation  out  of  the  hands  of  the  judiciary,  proves  it  on  every 
page. 

Self-government,  general  as  well  as  local,  is  indispensable 
to  our  liberty,  but  interference  and  dictation  are  the  essence 
of  absolutism.  Monarchical  absolutisms  presume  to  do  every- 
thing and  to  provide  for  everything,  and  Robespierre,  in  his 
"  great  speech"  for  the  restoration  of  the  Supreme  Being, 
said :  The  function  of  government  is  to  direct  the  moral  and 
physical  forces  of  the  nation.  For  this  purpose  the  aim  of  a 
constitutional  government  is  the  republic.^ 

Liberty  requires  that  every  one  should  be  judged  by  his 
common  court.  All  despots  insists  on  extraordinary  courts, 
courts  of  commission,  and  an  easy  application  of  martial 
law. 

Forcible  expatriation  or  deportation  "beyond  the  seas"  by 
the  executive  is  looked  upon  with  peculiar  horror  by  all  free- 
men. The  English  were  roused  by  it  to  resisiance ;  Napo- 
leon III.  began  his  absolute  reign  with  exile  and  deportation. 
So  did  the  Greek  factions  banish  their  opponents  when  they 
had  the  power  of  doing  so,  because  no  "opposition"  in  the 
modern  sense  was  known  to  them.  With  them  it  was  the 
blundering  business  of  factions  ;  moderns  know  better,  and  if 


'  The  words  of  Robespierre  are  sufficiently  clear,  if  taken  as  an  illustration  of 
■what  has  been  stated  in  the  text;  otherwise,  I  own,  the  sense  is  not  perfectly 
apparent. 


2;6  ON  CIVIL  LIBERTY 

they  return  to  it,  it  is  because  despotism  is  a  thing  full  of  fear 
and  love  of  show. 

How  great  an  offence  it  is  to  deprive  a  man  of  his  lawful 
court  and  to  judge  him  by  aught  else  than  by  the  laws  of  the 
land,  now  in  the  middle  of  the  nineteenth  century,  will  appear 
the  more  forcibly  if  the  reader  will  bring  to  his  mind  that 
passage  of  Magna  Charta  which  appeared  to  Chatham  worth 
all  the  classics,  and  if  he  will  remember  the  year  when  the 
Great  Charter  was  carried.  The  passage,  so  pregnant  to  the 
mind  of  Chatham,  is  this: 

"  No  freeman  shall  be  taken,  or  imprisoned,  or  be  disseised 
of  his  freehold  or  liberties,  or  free  customs,  or  be  outlawed 
or  exiled,  or  any  otherwise  destroyed,  nor  will  we  (the 
king)  pass  upon  him,  nor  condemn  him,  but  by  lawful  judg- 
ment of  his  peers,  or  by  the  law  of  the  land.  We  will  sell 
to  no  man,  we  will  not  deny  or  defer  to  any  man,  justice  or 
right." ' 

Publicity  is  a  condition  without  which  liberty  cannot  live. 
The  moment  it  had  been  concluded  by  the  present  government 
of  France  to  root  out  civil  freedom,  it  was  ordained  that  neither 
the  remarks  of  the  members  of  the  legislative  corps,  nor  the 
pleadings  in  the  courts  of  justice,  should  be  reported  in  the 
papers.  Modern  political  publicity,  however,  consists  chiefly 
in  publication  through  the  journals.  We  acknowledge  this 
practically  by  the  fact  that,  although  our  courts  are  never 
closed,'  yet,  for  particular  reasons  arising  out  of  the  case 
under  consideration,  the  publication  of  the  proceedings  is 
sometimes  prohibited  by  the  judge  until  the  close  of  the  trial, 
but  never  beyond  it. 

Liberty  stands  in  need  of  the  legal  precedent,  and  Charles  I. 
pursued  Cotton  because  he  furnished  Pym  and  other  patriots 
with  precedents,  while  the  present  French  government  has 


*  [/.I?.,  chap.  xxix.  of  the  Charter  of  9  Henry  III.,  confirmed  by  Edward  I.  in 
the  twenty-fifth  year  of  his  reign,  and  nearly  agreeing  with  chapters  xlvi.  and 
xlvii.  of  John's  Charter,  as  given  in  Appendix  IV.] 

»  Very  scandalous  judicial  cases,  offensive  to  public  morals,  are,  in  France, 
conducted  with  closed  doors. 


AND  SELF-GOVERNMENT.  277 

excluded  instruction  in  history  from  the  plan  of  general  edu- 
cation. History,  in  a  certain  point  of  view,  may  be  called  the 
great  precedent.  Histoiy  is  of  all  branches  the  most  nourish- 
ing for  public  life  and  liberty.  It  furnishes  a  strong  pabulum 
and  incites  by  great  examples  removed  beyond  all  party  or 
selfish  views.  The  favorite  book  of  Chatham  was  Plutarch, 
and  his  son  educated  himself  upon  Thucydides.'  The  best 
historians  have  been  produced  by  liberty,  and  the  despot  is 
consistent  when  he  wishes  to  shackle  the  noble  muse. 

Sincere  civil  liberty  requires  that  the  legislature  should  have 
the  initiative.  All  governments  reluctant  to  grant  full  liberty 
have  withheld  it,  and  one  of  the  first  things  decreed  by  Louis 
Napoleon  after  the  second  of  December  was  that  the  "  legis- 
lative corps"  should  discuss  such  propositions  of  laws  only  as 
the  council  of  state  should  send  to  it.  The  council  of  state, 
however,  is  a  mere  body  of  officers  appointed  and  discharged 
at  the  will  of  the  ruler. 

Liberty  requires  that  government  do  not  form  a  body  perma- 
nently and  essentially  separated  from  the  people;  all  modern 
absolute  rulers  have  resorted  to  a  number  of  distinctions — 
titles,  ribbons,  orders,  peacock-feathers  and  buttons,  uniforms, 
or  whatever  other  means  of  separating  individuals  from  the 
people  at  large  may  seem  expedient. 

Liberty  requires  the  trial  by  jury.  Consequently,  one  of  the 
first  attacks  which  arbitrary  power  makes  upon  freedom  is 
regularly  directed  against  that  trial.  There  i§  now  a  law  in 
preparation  in  France,  of  which  the  outlines  have  been  pub- 
lished, and  which  will  place  the  jurors  under  the  almost 
exclusive  influence  of  the  government. 

Liberty  requires,  as  we  have  seen,  a  candid  and  well- 
guaranteed  trial  for  treason ;  all  despotic  governments,  on  the 
contrary,  endeavor  to  break  down  these  guarantees  in  par- 
ticular. They  arrogate  the  power  of  condemning  political 
offenders  without  trial,  or  strip  the  trial  for  treason  of  its  best 
guarantees. 


»  So  Bishop  Tomlinson  tells  us  in  the  Life  of  his  pupil. 


2/8 


ON  CIVIL   LIBERTY 


But  we  might  go  through  the  whole  list  of  safeguards  and 
principles  of  liberty,  and  find  that  in  each  case  absolutism  does 
the  opposite. 

If  the  American  peruses  the  Declaration  of  Independence, 
he  will  find  there,  in  the  complaints  of  our  forefathers,  almost 
a  complete  list  of  those  rights,  privileges,  and  guarantees 
which  they  held  dearest  and  most  essential  to  liberty ;  for 
they  believed  that  nearly  every  guarantee  had  been  assailed. 


AND  SELF-GOVERNMENT.  279 


CHAPTER   XXIV. 

GALLICAN   LIBERTY. — SPREADING    OF   LIBERTY. 

Having  considered  Anglican  liberty,  it  will  be  proper  for  us 
to  examine  the  French  type  of  civil  freedom,  or  Gallican  liberty. 

In  speaking  here  of  Gallican  liberty,  we  mean,  of  course, 
that  liberty  which  is  characteristically  French,  either  in  reality, 
if  we  shall  find  that  at  any  period  it  has  taken  actual  root,  or 
in  theory,  if  it  have  remained  such,  and  never  practically 
developed  itself.  Liberty  has  sprouted  in  France  as  in  other 
countries.  People  have  felt  there,  as  all  over  Europe,  that  the 
administration  of  justice  ought  to  be  independent  of  the  other 
branches  of  government.  The  separation  of  the  three  great 
functions  of  government  was  proclaimed  by  the  first  constituent 
assembly.  But  the  question  here  is,  whether  any  of  these  or 
other  endeavors  to  establish  liberty  have  been  consolidated 
into  permanent  institutions,  whether  they  have  been  allowed 
to  develop  themselves,  and  whether  they  were  or  are  peculiar 
to  the  French,  or  were  adopted  from  another  system  of  devel- 
oped civil  liberty,  as  we  adopt  the  whole  or  parts  of  an  order 
of  architecture  or  a  philosophical  system  ;  and,  if  we  find  no 
such  institutions  or  guarantees  peculiar  to  the  French,  whether 
there  be  a  general  idea  and  conception  of  liberty  which  per- 
vades all  France  and  is  peculiar  to  that  country. 

In  viewing  the  French  institutions  which  have  been  in- 
tended for  the  protection  of  individual  rights  or  the  preserva- 
tion of  liberty,  I  can  discover  none  which  has  had  a  permanent 
existence,  except  the  court  of  cassation  or  quashing.  It  is  the 
highest  court  of  France,  possessing  the  power  of  annulling  or 
breaking'  the  judgments  of  all  other  courts  of  justice,  whether 


•  Casser  is  the  French  for  breaking;  hence  the  name  of  the  court. 


28o  ON  CIVIL  LIBERTY 

in  civil  or  criminal  matters,  on  account  of  faults  and  flaws  in 
the  judicial  forms  and  procedure,  or  of  misapplications  of  the 
existing  law.  It  has  no  power  to  examine  the  verdict.  It 
resembles,  therefore,  the  court  of  Westminster,  in  England, 
when  the  assembled  judges  hear  questions  of  law,  or  our  su- 
preme court  of  the  United  States  on  similar  occasions,  and  the 
supreme  courts  or  courts  of  appeal  or  error  in  the  different 
states.  The  court  of  cassation  must  necessarily  sometimes 
judge  of  certain  procedures  of  the  government  against  indi- 
viduals, and  declare  whether  individual  rights,  publiciy  guar- 
anteed, have  been  invaded.  Thus  it  showed  its  power  to 
some  extent  when  Paris  was  declared  in  a  state  of  siege  and 
the  whole  city  was  under  martial  law.  But  the  high  attribute 
of  pronouncing  upon  the  constitutionality  of  the  laws  them- 
selves, which  we  cherish  in  our  supreme  courts,  does  not 
belong  to  it,  nor  can  its  power  be  vigorously  and  broadly 
exercised  in  a  conflict  with  the  supreme  power,  since  this 
power  bears  down  everything  in  a  country  so  vast  and  yet 
so  centralized  as  France,  and  in  which  the  principle  of  de- 
velopment, independent  of  the  executive  or  central  power,  is 
not  acknowledged  in  the  different  institutions.  The  court  of 
cassation  has  at  the  same  time  a  supervisory  authority  over 
the  judges  of  other  courts,  and  can  send  them  before  the 
keeper  of  the  seals  (the  minister  of  justice)  to  give  an  account 
of  their  conduct.  It  is  likewise  an  object  of  the  court  of 
cassation  to  keep  the  application  of  the  law  uniform  in  the 
different  portions  of  the  country.  This  is  a  necessary  effect 
of  its  power  to  quash  judgments. 

Tlie  institution  of  the  justice  of  the  peace  ought  to  be 
mentioned  here,  although  it  can  only  be  considered  as  indi- 
rectly connected  with  liberty.  The  French  justice  of  the  peace 
differs  from  the  English  officer  of  the  same  name  in  this,  that 
his  function  is  exclusively  of  a  conciliatory  character.  Courts 
of  conciliation  have  existed  in  many  countries,  and  long 
before  the  present  justices  of  the  peace  were  established  in 
France  by  the  first  constituent  assembly ;  but,  as  we  see  them 
now  there,  they  must  be  called  a  French  institution.     It  has 


AuYD  SELF-GOVERNMENT.  28 1 

proved  itself  in  France,  as  well  as  in  other  countries,  of  the 
highest  value  in  preventing  litigation,  with  all  the  evils  which 
necessarily  attach  themselves  to  it.' 

No  one,  I  suppose,  would  expect  the  senate,  first  established 
by  Napoleon  I.  and  then  called  the  conservative  senate,  that 
is,  the  senate  whose  nominal  duty  it  was  to  conserve  the 
constitution,  and  now  re-established  by  Napoleon  III.,  to  be 
enumerated  as  an  institution  for  the  support  of  liberty.  It  has 
no  more  connection  with  liberty  than  the  Roman  senate  had 
under  the  emperors.  Its  very  origin  would  lead  no  one  to 
expect  in  it  a  guarantee  of  liberty.  On  the  contrary,  the 
French  senate  has  been  a  great  aid  to  imperial  absolutism,  by 
giving  to  comprehensive  measures  of  monarchical  despotism 
the  semblance  of  not  having  originated  with  the  absolute 
monarch  or  of  having  received  the  countenance  of  a  high  and 
numerous  political  body.  In  this  respect  the  French  senate 
seems  to  me  worse  than  that  of  Russia.  The  Russian  senate 
is  nothing  but  a  council,  leaving  all  power  and  responsibility 
with  the  czar,  in  appearance  as  well  as  in  reality. 

That  which  after  careful  examination  must  be  pronounced 
to  be  Galilean  liberty  is,  I  take  it,  the  idea  of  equality  founded 
upon  or  acting  through  universal  suffrage,  or,  as  it  is  frequently 
called  by  the  French,  "  the  undivided  sovereignty  of  the 
people"  with  an  uncompromising  centralism.  As  it  is  neces- 
sarily felt  by  many,  that  the  rule  of  universal  suffrage  can, 
practically,  mean  only  the  rule  of  the  majority,  liberty  is 
believed  in  France,  as  has  been  said,  to  consist  in  the  absolute 
rule  of  the  majority.^ 


'  We  have  seen  that  courts  of  conciliation  have  attracted  renewed  attention 
in  England  since  Lord  Brougham's  proposition  of  an  act  for  the  Farther  Cheap- 
ening of  Justice,  in  May,  1851.  An  instructive  article  on  this  important  subject, 
and  the  excellent  effects  these  courts  have  produced  in  many  countries,  shown 
by  official  statistics,  can  be  found  in  the  Gennan  Staats-Lexicon,  ad  verbum 
Friedensgericht. 

»  I  have  given  my  views  on  the  subject  of  the  nature  of  sovereignty  and  the 
way  it  acts,  at  length  in  the  first  volume  of  the  Political  Ethics.  If  I  have  not 
succeeded  there  in  mastering  the  subject,  I  should  not  be  able  to  do  it  here;  if 
I  have  succeeded,  I  cannot  in  fairness  repeat  a  long  discussion. 


282  ON  CIVIL  LIBERTY 

Every  one  who  has  steadily  followed  the  discussions  of  the 
late  constituent  and  national  assemblies,  who  has  resolutely 
gone  through  the  debates  of  the  first  constitucnte,  and  studied 
the  history  of  the  revolution,  and  who  is  fairly  acquainted  with 
French  literature,  will  agree,  I  trust,  that  the  idea  of  Gallican 
liberty  has  been  correctly  stated.  There  are  many  French- 
men, indeed,  who  know  that  this  is  not  liberty,  that  at  most 
it  can  only  be  a  means  to  obtain  it ;  but  we  now  speak  of  the 
conception  of  liberty  peculiar  to  the  French  school. 

Institutions,  such  as  we  conceive  their  necessary  character 
to  be,  that  is,  establishments  with  the  important  element  of 
self-government,  and  of  a  system  of  guarantees  beyond  the 
reach  of  daily  change,  do  not  enter  as  necessary  elements  into 
the  idea  of  Gallican  liberty.  Self-government  is  sought  for  in 
the  least  impeded  rule  of  the  majority.  It  has  been  seen, 
however,  that,  according  to  the  Anglican  view,  the  question 
who  shall  rule  is  an  important  question  of  liberty  indeed,  but 
only  one  about  the  means ;  for  if  the  ruler,  whoever  he  be, 
deprives  the  ruled  of  liberty,  there  is  of  course  no  liberty.  A 
suicide  does  not  the  less  cease  to  live  because  he  kills  himself; 
and  two  game  fowls  nearly  matched,  as  the  parties  in  a  nation 
may  be,  do  not  symbolize  liberty,  because  at  one  time  the  one 
may  be  uppermost,  and  at  another  time  the  other. 

There  seems  to  be  in  France  a  constant  confusion  of  equality 
and  democracy  on  the  one  hand,  and  of  dem.ocracy  and  liberty 
on  the  other ;  now,  although  equality  largely  enters  as  an 
element  in  all  liberty,  and  no  liberty  can  be  imagined  without 
a  democratic  element,  equality  and  democracy  of  themselves 
are  far  from  constituting  liberty.  They  may  be  the  worst  of 
despotisms  :  the  one  by  annihilating  individuality,  as  the  com- 
munist strives  to  do;  the  other — if  it  means  democratic  abso- 
lutism— by  being  real  sweeping  power  itself — not  power  lent, 
as  that  of  the  monarch  always  must  be — power  without  per- 
sonal responsibility.  It  acts ;  but  where  is  the  actor,  who  is 
responsible,  who  can  be  made  responsible,  who  will  judge? 

It  is  with  reference  to  this  rule,  and  this  mistaken  view  of 
liberty,  that  one  of  their  wisest,  best,  and  most  liberty-loving 


AND  SELF-GOVERNMENT.  283 

men,  Mr,  Royer  Collard,  has  said:'  "It  is  nothing  but  a 
sovereignty  of  brute  force,  and  a  most  absolute  form  of  abso- 
lute power.  Before  this  sovereignty,  without  rule,  without 
limit,  without  duty,  and  without  conscience,  there  is  neither 
constitution  nor  law,  neither  good  nor  evil,  nor  past  nor 
future.  The  will  of  to-day  annuls  that  of  yesterday,  without 
engaging  that  of  to-morrow.  The  pretensions  of  the  most 
capricious  and  most  extravagant  tyranny  do  not  go  so  far, 
because  they  are  not  in  the  same  degree  disengaged  from  all 
responsibility." 

Where  any  one,  or  any  two,  or  any  three,  or  any  thousand, 
or  any  million,  can  do  what  they  have  the  mere  power  to  do, 
there  is  no  liberty.  Arbitrary  power  does  not  become  less 
arbitrary  because  it  is  the  united  power  of  many. 

Napoleon  said :  "  The  French  love  equality ;  they  care 
little  for  liberty."  ^  Napoleon  certainly  mistook  the  French, 
and  mankind  in  general,  very  seriously  in  some  points,  as  all 
men  of  his  stamp  are  liable  to  do ;  there  are  some  entire  in- 
stincts wanting  in  them  ;  but  we  fear  that  he  was  right  in  this 
saying  with  reference  to  a  large  part  of  the  French  people. 
Present  events  seem  to  prove  it.^ 

This  equality  is  again  very  generally  mistaken  for  uniform- 
ity, so  that  it  would  naturally  lead  of  itself  to  centralization, 
even  if  the  French  had  not  contracted  a  real  passion  for  cen- 
tralization ever  since  the  reigns  of  Richelieu  and  Louis  XIV. 
It  has  increased  with  almost  every  change  of  government.  It 
is  the  love  of  power  carried  into  every  detail,  and  therefore  the 


'  Royer  CoUard's  Opinion,  of  October  4,  1831. 

»  Words  spoken  to  Lord  Ebrington,  in  his  exile  on  the  island  of  Elba. 

3  Rousseau  expressed  the  political  idea  of  equality,  the  aversion  to  representa- 
tive governments  and  institutional  politics,  and  the  disapproval  of  private  prop- 
erty, boldly  and  clearly  in  his  Social  Contract,  a  masterly  written  work,  which 
has  exercised  an  incalculable  effect  on  French  affairs.  It  wa^.the  favorite  book 
of  the  leading  men  of  the  first  revolution,  and  continues  largely  to  influence  the 
French.  Yet  Rousseau  only  pronounced  more  clearly,  and  boldly  carried  farther, 
the  ideas  of  unity,  concentration,  and  equality,  that  had  been  gradually  growing 
stronger  in  the  French  mind  long  before  him.  They  can  be  traced  not  only  in 
politics,  but  in  all  spheres. 


284  ^^'  CIVIL  LIBERTY 

opposite  of  what  we  call  self-government;^  it  is  the  exceeding 
partiality  of  the  French  for  logical  neatness  and  consistency 
of  form,  strikingly  manifested  in  the  fact  that  the  word  logical 
is  now  universally  used  in  French  for  consistency  of  action  or 
natural  sequence  of  changes — it  is  this  mathematical  enthu- 
siasm, if  the  expression  be  permitted,  applied  to  the  vast  field 
of  political  practice. 

It  seems  that  we  can  explain  the  cry  of  Republique  demo- 
cratique  et  sociale,  so  often  repeated  by  the  most  advanced  of 
the  democrats  during  the  late  government  without  a  king,  only 


•  T  have  given  some  remarkable  instances  of  interference  on  the  part  of  modern 
absohite  governments,  in  the  Political  Ethics.  I  shall  add  the  following  recent 
instance  :  I  am  sure  that  no  one  accustomed  to  Anglican  self-government  considers 
such  details  trivial,  however  well  he  may  be  acquainted  with  the  fact  in  general, 
that  government  in  those  countries  tries  to  guide,  direct,  manage,  initiate,  and 
complete  everything  that  seems  of  any  importance.  Some  years  ago  a  German 
king  ironically  called,  in  a  throne  speech,  constitutions  Paper  Providences.  The 
expression  was  every  way  most  unfortunate.  It  seems  to  me  that  it  is  these  very 
governments  of  centralized  mandarinism  that  play  at  Providence,  in  which  they 
closely  resemble  the  communists,  as  indeed  all  absolutism  contains  a  strong 
element  of  communism. 

The  following  is  taken  from  the  Paris  Moniteur,  the  French  official  paper,  or 
organ  of  government,  in  October,  1 85 2.  I  do  not  give  the  entire  decree,  but  the 
principal  articles : 

There  will  be  published,  under  the  care  of  the  minister  of  public  instruction, 
a  general  collection  of  the  popular  poetry  of  France,  either  to  be  found  in  manu- 
script in  the  libraries,  or  transmitted  by  the  successive  memories  of  generations. 

The  collection  of  the  popular  poetry  of  France  will  consist  of 

Religious  and  warlike  songs ; 

Festive  songs  and  ballads ; 

Historical  recitals,  legends,  tales,  satirical  songs. 

The  committee  of  language,  history,  and  the  arts  of  France,  connected  with 
the  ministry  of  public  instruction,  is  charged  with  the  selection  of  all  pieces  sent 
for  inspection,  and  to  determine  which  are  to  be  received,  to  regulate  them,  and 
give  the  necessary  commentaries. 

A  medal  is  to  be  given  to  those  persons  who,  by  their  discoveries  and  re- 
searches, particuWrly  contribute  to  enrich  the  collection,  which  will  be  called 
R6cueil  des  Poesies  Populaires. 

It  is  unnecessary  to  remind  the  reader  that,  if  this  undertaking  has  been  dic- 
tated by  any  desire  of  promoting  literature,  a  political  motive  has  been  at  least 
equally  strong,  according  to  the  old  saying :  Give  me  the  ballad-making,  and  I 
will  rule  t"ie  people. 


AND  SELF-GOVERNMENT.  285 

on  the  ground  of  equality  being  considered  the  foundation  of 
all  liberty.  Indeed,  it  is  considered  by  many  a  requisite  which 
lies  beyond  liberty,  and  the  banners  of  socialists  bore  the 
motto  Equality  and  Fraternity,  or  Equality,  Fraternity,  In- 
dustry, the  word  Liberty  having  been  altogether  dropped  from 
that  once-worshipped  legend :  Liberty,  Fraternity,  Equality. 
I  have  never  been  able  to  find  an  explanation  of  the  watch- 
word, Democratic  and  Social  Republic,  given  by  those  who 
use  it,  but  it  seems  to  bear  no  other  interpretation  than  this  : 
Democratic  republic  signifies  that  republic  which  is  founded 
upon  the  total  political  equality  of  its  members,  carried  to  its 
last  degree,  and  social  republic  must  mean  a  republic  based  on 
equality  of  social  condition.  Whether  this  be  possible,  or  de- 
sirable if  it  were  possible,  cannot  occupy  us  at  present.  The 
frequent  use  of  this  term  by  a  very  large  part  of  the  French 
nation  has  been  mentioned  here  as  one  of  the  evidences  show- 
ing the  prevailing  love  of  mere  equality  among  the  French. 

Still,  it  is  not  easy  to  say  what  the  French  exactly  mean  by 
equality,  or  what  Napoleon  meant  by  it  when,  at  St.  Helena, 
he  said  that  he  had  given  equality  to  the  French,  and  that  this 
was  all  he  could  give  them,  but  that  his  son  would  have  given 
them  liberty.  How  he  knew  that  his  son  would  have  done  it, 
we  certainly  do  not  know ;  but  how  did  he  give  them  equality, 
when  it  was  he  who  re-established  the  ancient  orders  of  no- 
bility ?  So  there  are,  in  spite  of  all  the  love  of  equality,  no 
people  who  more  universally  love  uniforms  and  an  order  with 
a  ribbon,  than  the  French.  This  inconsistency  is  a  political 
misfortune.  In  theory,  equality  and  democracy,  carried  to 
the  utmost,  are  demanded,  while  the  habits,  tendencies,  and 
desires  of  the  people  have  a  different  bent.  There  is  in  this 
respect,  it  seems,  an  intellectual  and  psychical  dualism  with 
antagonistic  elements  in  France,  similar  to  that  which  we 
frequently  observe  in  individuals  in  regard  to  liberty  and 
despotism.' 


*  Nothing  is  more  common  than  men  with  a  decided  intellectual  bent  towards 
freedom  and    an    equally  decided    psychical   inclination    towards    absolutism. 


286  ON  CIVIL  LIBERTY 

It  is  evident  how  nearly  allied  this  desired  equality  and  uni- 
formity, together  with  universal  but  uninstitutional  suffrage, 
and  that  kind  of  sovereignty  which  is  in  addition  confounded 
with  absolute  power,  are  to  those  political  extravagances 
which  strike  our  eyes  in  present  France. 

They  are  the  natural  effects  of  the  one  or  the  other,  strictly 
carried  out,  however  inconsistent  they  may  appear  with  one 
another.  Equality  absolutely  carried  out  leads  to  communism; 
the  idea  of  undivided  sovereignty  leads  to  Mr.  Girardin's  con- 
ception of  having  no  legislature,  no  division  of  power — nothing 
but  a  succession  of  popular  sultans  ;  the  idea  of  seeking  all 
liberty  in  universal  suffrage  alone  leads  with  the  greatest  ease 
to  a  Napoleon — a  transfer  of  everything  to  one  man,  and  of 
all  future  generations  to  his  descendants,  thus  actually  real- 
izing the  fearful  theory  of  Hobbes;  and  the  absence  of  a  love 
of  institutions  leads  to  a  remarkable  tendency  to  worship  one 
man,  to  centralization,  or,  in  some  cases,  to  the  very  opposite 
— a  desire  to  abolish  all  government  and  establish  the  "sove- 
reignty of  the  individual."     All  extremes  in  politics  meet. 

There  is  no  greater  error  than  the  idea  of  making  the  vote 
or  election  the  sole  basis  of  liberty — of  believing  that,  with 
the  establishment  of  an  extensive  or  universal  suffrage,  we 
set  up  liberty,  however  true  it  is  that  liberty  stands  in  need  of 
election.  Absolutism  may  rest  on  this  as  on  any  other  basis. 
The  deys  of  Algiers  were  elective,  but,  once  elected,  they  were 
unbounded  masters,  in  the  oriental  sense  of  the  term.  The 
generals  of  nearly  all,  I  believe  of  all,  the  monastic  orders 
are  elective,  but,  once  elected,  the  vow  of  obedience  of  every 
monk,  and  the  distinct  renunciation  of  liberty,  make  the  gen- 


Their  intellect  admires  the  grandeur  of  liberty,  their  reason  acknowledges  the 
principles  of  justice;  their  desires  are  for  free  action,  and  yet  their  souis  resent 
every  opposition.  They  appear,  therefore,  often  as  hypocrites,  without  being 
such  in  reality.  There  is  a  dualism  within  them  whose  two  elements  are  at  war, 
very  similar  to  that  which,  without  hypocrisy,  makes  many  persons  sincerely 
preach  ]ieace  and  charity  abroad,  but  act  at  home  as  domestic  tyrants. 

History  is  full  of  such  characters,  and  we  have  had  an  exhibition  of  it  in  one 
of  our  presidents.  Happily,  our  institutional  system  did  not  allow  a  very  wide 
play  of  such  a  disposition. 


A.\D  SELF-GOVERNMENT.  287 

eral  master.  No  order,  no  human  association,  has  carried  the 
doctrine  of  absolute  obedience  to  a  more  frightful  extent  than 
the  Jesuits,  whose  founder  demands  that  the  inferior  shall  be 
in  the  hands  of  the  superior  ut  baculum,  like  a  mere  staff,  and 
whose  distinctly  expressed  principle  it  is,  that  eveiy  command 
of  the  superior  shall  be  like  a  commandment  from  on  high, 
even  though  sin  be  commanded.  Yet  the  government  of  the 
order  is  founded  on  election.  Mr.  Guizot,  in  speaking  of  the 
monastic  orders,"  says:  "As  regards  the  political  code  of  the 
monasteries,  the  rule  of  St.  Benedict  offers  a  singular  mixture 
of  despotism  and  liberty.  Passive  obedience  is  its  funda- 
mental principle;  at  the  same  time  the  government  is  elective; 
the  abbot  is  always  chosen  by  the  brothers.  When  once  the 
choice  is  made,  they  lose  all  liberty,  they  fall  under  the  abso- 
lute domination  of  their  superior.  Moreover^  in  imposing 
obedience  on  the  monks,  the  rule  orders  that  the  abbot  con- 
sult them.  Chap.  iii.  expressly  sSys,  'Whenever  anything  of 
importance  is  to  tal^  place  in  the  monastery,  let  the  abbot 
convoke  the  whole  congregation,  and  say  what  the  question 
is ;  and  after  having  heard  the  advice  of  the  brothers,  he  shall 
think  of  it  apart,  and  shall  do  as  appears  to  him  most  suitable.' 
Thus,  in  this  singular  government,  election,  deliberation,  and 
absolute  power  were  coexistent." 

The  pope  is  an  elective  monarch  over  the  States  of  the 
Church.  No  one  has  ever  maintained,  that  on  this  account 
liberty  has  a  home  in  that  country.  Nor  would  the  case  be 
altered  if  the  pope  were  elected,  not  by  the  college  of  cardinals, 
but  by  a  more  numerous  body  of  electors,  or  by  all  male 
adults,  or  even  by  the  whole  population,  male  and  female. 
The  high  priest  or  president  in  the  polity  of  that  stupendous 
outrage  called  Mormonism  is  elective,  and  the  Mormons 
themselves  call  their  government  a  theo-democracy  ;^  yet  a 

•  History  of  Civilization  in  France,  lect.  xiv.,  sub  fin. 

^  Theo-democracy  does  not  contain  a  contradiction,  however  novel  and,  at 
first  sight,  startling  the  term  may  appear  to  us.  If  democracy  necessarily  ex- 
pressed the  idea  of  liberty,  then  indeed  the  name  theo-democracy  would  be 
senseless,  for  all  theocracy  or  sacerdotal  rule  is  a  negation  of  civil  liberty.  It 
immures  in  dusrma. 


288  OjV  civil  liberty 

greater  absohitism  has  never  existed,  indeed,  ■we  may  fairly 
say,  none  equal  to  it.  It  unites  democracy  and  communism, 
which  is  absolutism,  with  continuous  and  permanent  revela- 
tions of  the  deity,  not  only  on  dogmatic  points,  but  on  every 
measure  of  weight.  It  is  a  jus  divinum  such  as  the  ancients 
did  not  even  dream  of  when  they  derived  their  kings  from  the 
loins  of  the  gods,  and  it  is  a  communism  such  as  Mohammed 
never  dared  to  embody  in  his  politico-religious  system. 

The  unicameral  system  must  be  mentioned  here  as  a  fea- 
ture of  Gallican  liberty,  because  it  is  held  by  all  those  persons 
who  seem  to  be  the  most  distinct  enunciators  of  this  species 
of  liberty,  a  necessary  requisite  if  they  allow  the  principle  of 
representation  at  all.  They  consider  that  the  bicameral  system 
of  representatives  is  aristocratic,  or  else,  as  one  of  their  writers 
expresses  it,  that  two  houses  can  never  be  reconciled  except 
by  money  or  by  blood.  The  partiality  for  a  legislature  of  one 
house  is  a  necessary  consequence  of  the  French  idea  of  unity 
in  the  government  or  the  unity  of  the  state,  and  actual  abhor- 
rence of  confederacies. 

The  Anglican  wants  union  in  his  general  government ;  the 
Gallican,  unity.     He  wants  his  government  to  be  a  solid  unit* 


In  a  similar  manner,  and  with  equal  justice,  the  Rev.  Mr.  Payne  says  of  the 
Grebo  tribe,  at  Cape  Palmas,  that  their  constitution  is  patriarchal,  with  a  purely 
democratic  government.  His  account  is  contained  in  "The  Report  of  the  Rev. 
R.  R.  Gurley,  who  was  recently  sent  out  by  the  government  to  obtain  informa- 
tion in  respect  to  Liberia,"  published  by  the  senate  of  the  United  States,  in  1850, 
thirty-first  congress,  first  session,  executive  document  No.  75.  The  political 
philosopher  can  hardly  read  a  more  interesting  paper  than  this. 

'  The  extent  to  which  this  idea  is  occasionally  carried  out  is  almost  incon- 
ceivable to  us,  accustomed  as  we  are  to  so  essentially  different  a  system  and  train 
of  political  thoughts.  A  few  years  ago  the  minister  of  the  interior  had  given 
some  new  directions  regarding  the  quarantine  regulations.  They  were  more  in 
conformity  with  the  opinions  of  scientific  men  on  the  contagiousness  of  the 
jilague.  The  people  of  Marseilles,  who  still  keep  the  terrible  plague  of  the  last 
century  in  vivid  remembrance,  disapproved  of  these  orders  from  the  central 
government,  and  a  meeting  of  certain  persons  was  called  together.  Whereupon 
most  newspapers  took  part  with  the  government,  and  charged  the  citizens,  with 
whom  this  little  germ  of  self-government  had  shown  itself,  with  the  hideous  sin 
o\  federalism,  the  crime  for  which  many  had  lost  their  heads  in  the  first  revolu- 
tion.    This  was   in  the  times  of  the  so-called  republic,  before   the  second  of 


AND  SELF-GOVERNMENT.  289 

He  wishes  to  deprive  every  institution,  as  much  as  possible, 
of  the  principle  of  self-government  and  independence,  and  the 
only  question  which  remains  is,  who  shall  be  the  ruler  and  re- 
ceive that  power  which  government  gives  ?  To  this  subject, 
as  to  many  others  on  which  I  have  touched,  we  shall  return 
when  I  shall  treat  more  fully  of  the  institutional  government 
and  its  opposite. 

It  is  not  likely  that  people  who  speak  with  derision  of  par- 
liamentary government,  by  which  nothing  is  meant  but  a 
government  in  which  a  deliberative  and  representative  legisla- 
ture forms  an  integral  part,  and  of  parlcvientarisvt,  as  the  new 
phrase  is,  would  treat  the  legislature  as  an  institution  with 
self-government  and  a  necessary  degree  of  independence.  Ac- 
cording to  their  idea,  the  safeguards  which  we  believe  are 
found  in  a  mutually  moderative  contrivance  ought  to  be  done 
away  with.  Speedy  energy,  absence  of  opposition  and  of 
results  which  are  the  products  of  mutual  modification  and 
mutual  toleration,  unity  of  ideas,  not  consisting  in  collective 
effects  but  in  a  merely  logical  carrying  out  of  some  abstract 
principle ;  these  are  the  main  objects,  according  to  Gallican 
views.  The  United  States  are  far  from  being  favorably  looked 
upon  by  the  French  people,  and  they  are  viewed  with  real  ill 
will  by  the  Red  Republicans  on  account  of  our  decentralization. 
Rousseau  seems  to  have  harbored  a  positive  ill  will  toward  the 
representative  system,  and  his  followers  have  a  still  stronger 
antipathy  against  federal  governments,  and  self-government 
which  may  be  said,  in  one  point  of  view,  to  be  a  minute 
application  of  the  federative  principle. 

The  Spaniards,  the  Portuguese,  the  Neapolitans,  have  made 

December,  and  the  few  papers  which  took  side  with  the  citizens  were  legitimist 
papers,  thus  furnishing,  by  the  way,  another  instance  of  the  fact  that  all  sorts  of 
things  are  possible  under  peculiar  circumstances.  It  was  the  Tories  who  resisted 
the  septennial  bill  abolishing  triennial  parliaments  in  1716;  it  was  the  Jesuits 
who  first  enunciated  the  doctrine  of  the  sovereignty  of  the  people,  in  order  to 
get  a  fulcrum  against  heretical  monarchs ;  it  was  a  Spanish  Jesuit  who  defended 
regicide  under  Philip  II. ;  and  here  we  have  legitimists,  working  for  a  descend- 
ant of  Louis  XIV.,  who  took  side  for  a  principle  of  self-action  against  the  central 
government ! 

19 


290 


ON  CIVIL  LIBERTY 


the  trial  of  copying  the  French,  but  have  succeeded  with  the 
system  of  one  house  no  better  than  the  French  themselves, 
and  have  passed  over  to  the  bicameral  legislature,  or  abolished 
representation  altogether. 

There  are  governments  in  which  the  medieval  principle  of 
estates  still  exists.  But  it  may  be  fairly  maintained  that  this 
is  a  remnant  of  the  middle  ages,  at  variance  with  the  changed 
state  of  modern  society.  Nowhere  do  they  present  themselves 
as  a  system  of  civil  liberty — it  is  rather  a  system  (and  rarely 
even  this)  of  privileges  or  liberties.  In  Sweden  the  estates 
still  exist,  namely  the  clergy,  nobility,  citizens,  and  peasants, 
and  a  high  degree  of  liberty  is  enjoyed.  But  in  examining 
the  constitution  of  Sweden  we  cannot  fail  to  observe  that 
modern  liberty  is  rather  superinduced  or  engrafted  on  the 
system  of  states,  than  evolved  out  of  it.  The  constitution  of 
Norway,  on  the  other  hand,  is  clearly  of  the  character  of  that 
liberty  which  we  have  designated  as  Anglican.' 

Frenchmen  would  probably  point  out  their  national  guards 
as  an  element  or  guarantee  of  Galilean  liberty.  They  were 
established  during  the  first  revolution,  and  have  always  been 
diminished  in  number  and  restricted  in  power  in  those  periods 
in  which  the  government  made  war  upon  liberty.  They  can- 
not, however,  be  considered  a  valid  guarantee  in  so  concen- 
trated a  government  as  the  French,  and  in  a  country  in  which 
the  army  is  so  gigantic.  It  was  chiefly  as  a  popular  force 
against  the  king,  that  the  national  guards  appeared  as  an 
important  element  of  liberty  in  the  first  French  revolution; 

'  [In  1S66  the  four  estates  of  Sweden  were  converted  into  two  houses,  of 
which  the  first  or  upper  consists  of  one  hundred  and  twenty-five  members,  who 
represent  the  noblesse,  other  landed  proprietors,  and  the  clergy,  and  are  elected 
by  landsthings  or  provincial  assemblies,  and  the  second,  of  one  hundred  and 
ninety-one  membei-s,  represents  the  towns  and  rural  districts.  The  term  of  office 
of  the  upper  house  is,  we  believe^  nine  years.  In  Norway  the  storthing,  or  legis- 
lature, chosen  by  electors  chosen  by  the  qualified  citizens,  holds  office  for  three 
years,  and  divides  itself  on  assembling  into  two  houses, — the  odahthing,  having 
three-quarters  of  the  whole  body  for  its  members,  and  the  lagthing,  composed 
of  one-quarter.  All  projects  of  laws  or  acts  originate  in  the  odahthing ;  and  if 
the  lagthing  rejects  them  twice  over,  the  storthing  meets  and  legalizes  the  project 
only  by  a  vote  of  two- thirds.} 


AND  SELF-GOVERNMENT. 


291 


but  they  cannot  be  called  a  real  guarantee  of  civil  libert}'', 
especially  when  no  institutional  guarantees  of  self-government 
exist. 

It  must  have  plainly  appeared  that  liberty  seems  to  me  effi- 
ciently secured  only  by  the  Anglican  system.  Other  attempts 
in  modern  times  have  been  but  very  partially  successful,  and  of 
these  there  are  only  a  few.  The  question  arises  at  once,  are 
those  persons  in  the  main  correct  who  roundly  assert  that  no 
people  are  fit  for  liberty  except  the  Anglo-Saxons?  For  thus 
they  call  the  English  nation,  and  those  who  have  descended 
from  it.  Or  is  it  correct  to  say  that  whoever  wishes  to  enjoy 
liberty  must  copy  the  main  institutions  of  Anglican  liberty  ? 
On  these  and  some  cognate  subjects  so  many  startling  errors 
exist,  that  the  remarks  on  the  different  types  of  liberty  may 
be  appropriately  concluded  by  some  observations  on  these 
misconceptions.  They  have  a  practical  bearing,  and  influence 
large  masses. 

It  is  doubtless  true  that  the  greatest  amount  of  liberty  is  at 
present  enjoyed  by  the  Anglican  race,  whose  institutions  and 
guarantees  seem  to  form  the  only  extensive  and  consistent,  as 
well  as  practical,  system  of  civil  liberty,  the  only  one  in  which 
liberty  and  law  have  become  firmly  interlocked,  and  by  which 
it  has  thus  become  possible  to  establish,  as  a  practical  reality, 
what  Tacitus  held  to  be  impossible  —  the  union  of  libertas 
and  imperium.  It  is  true  also  that  the  Anglican  division  has 
had  a  greater  influence  than  any  other  tribe  on  the  whole  white 
race,  and  that  other  nations  seem  to  have  enjoyed  liberty  or 
advanced  on  the  path  of  freedom,  in  recent  times,  in  the  same 
proportion  only  in  which  they  have  adopted  the  main  principles 
and  chief  institutions  elaborated  by  this  portion  of  our  race  ; 
and  it  is  equally  true  that  we  enjoy  so  great  an  amount  of  free- 
dom because  we  are  accustomed  to  liberty  and  a  government 
of  law,  and  because  our  race  has  perseveringly  developed  it  for 
centuries.  But  it  must  not  be  forgotten,  on  the  one  hand,  that 
other  nations  and  races  may  possibly  develop  certain  princi- 
ples in  a  manner  peculiar  to  their  character  and  circumstances; 
and,  on  the  other  hand,  that  it  is  the  rule  of  all   spreading 


292 


ox  CIVIL  LIBERTY 


adv^ancement  of  humanity  that  the  full  amount  of  what  has 
been  gained  by  patience,  blood,  or  fortunate  combinations  is 
transferred  to  other  regions  and  distant  tribes. 

The  missionary — from  St.  Paul,  when  he  went  to  Rome,  to 
those  who  now  embark  for  the  Pacific — does  not  demand  the 
neophyte  to  pass  through  the  dispensations  of  the  Old  Testa- 
ment, and  all  the  experience  of  the  early  church,  before  he 
begins  to  teach  the  dispensation  of  the  New  Testament,  and 
to  establish  churches  according  to  the  government  and  the 
theology  which  exist  at  his  home. 

There  are  many  persons  who  pretend  to  admire  liberty,  but 
withhold  it  from  the  people  on  the  plea  that  they  are  not  pre- 
pared for  it.  Unquestionably,  all  races  are  not  prepared  for 
the  same  amount  of  liberty,  and  many  are  not  yet  fit  for  any 
real  liberty  at  all.  But  two  things  are  certain,  that  all  nations, 
and  especially  those  belonging  to  our  own  civilized  family, 
prove  that  they  are  prepared  for  the  beginning  of  liberty,  by 
desiring  it  and  insisting  upon  it,  and  that  you  cannot  other- 
wise prepare  nations  for  enjoying  liberty  than  by  beginning  to 
establish  it,  as  you  best  prepare  nations  for  a  high  Christianity 
by  beginning  to  preach  it. 

There  are  persons  even  among  ourselves  who,  observing  how 
many  and  sad  failures  have  taken  place  with  other  nations, 
bluntly  assert  that  none  but  the  Anglo-Saxons  are  fit  for 
liberty,  and  that  it  cannot  be  enjoyed  by  others.  That  some 
nations  are  fitter  for  the  elaboration  or  peaceful  enjoyment  of 
liberty  than  others,  according  to  their  character,  which  makes 
them  perhaps  less  fit  to  excel  in  some  other  branches  of  civili- 
zation, cannot  be  denied.  So  was  the  Greek  more  fit  for  the 
fine  arts  than  the  Roman.  That  some  tribes  appear  on  the 
stage  of  history,  act  their  part,  and  vanish  again  without 
having  made  any  progress  in  civil  liberty,  or  ever  having  be- 
come conscious  of  it  as  an  element  of  advancing  civilization,  is 
equally  true.  But  do  we  hold  any  nation,  once  fairly  entered 
upon  the  path  of  civilization,  unfit  for  science  or  the  arts,  or  a 
stable  government,  or  a  literature,  or  for  Christianity  ?  That 
in  which  m  n  rises  highest,  and  manifests  himself  most  intel- 


AND  SELF-  G O  VERNMENT. 


293 


lectually — Christianity — is  believed  to  be  meet  for  all;  but 
should  liberty  be  restricted  to  a  tribe  or  a  single  nation  ?  It. 
is  not  likely.  I  have  admitted  that  some  nations  are  fitter 
for  the  one  or  the  other.  All  will  not  equally  cultivate  all 
branches  ;  each  cannot  originate  every  branch  ;  but  all  will 
partake  of  every  element  of  civilization ;  and  while  it  may  be 
proper  for  the  historian  to  say  such  a  nation  has  not  been  able 
to  act  with  originality  in  this  or  another  branch,  it  is  not  be- 
coming to  the  philosopher  to  say  that  such  a  portion  of  our 
race  will  not  be  able  to  do  so.  When  the  Greek  scholars  from 
Constantinople  carried  the  last  embers  of  Grecian  civilization 
and  intellectuality  over  the  West;  when  the  restoration  of  letters 
prepared  the  way  for  still  higher  achievements,  no  one  said 
that  the  English,  or  French,  or  Germans  were  unfit  to  partake 
in  the  humanizing  blessing,  although  the  Italian  soil,  still  bear- 
ing the  effects  of  former  culture,  was  the  first  to  bring  forth 
delectable  fruit.  When  Gothic  architecture  had  been  elabor- 
ated by  some,  it  was  not  believed  that  other  nations  could  not 
raise  cathedrals  in  the  same  style,  and  enjoy  it  and  develop  it 
in  their  own  way. 

On  the  other  hand,  we  meet  with  the  very  reverse.  Angli- 
can liberty  is  opposed  on  the  ground  that  it  is  not  indigenous, 
and  that  it  is  both  inexpedient  and  unworthy  to  adopt  it. 
Large  numbers  in  France,  both  communists  and  imperialists, 
treat  "  parliamentarism"  in  this  manner ;  and  the  emperor 
said,  when  he  had  assembled  the  senate  and  the  legislative 
corps,  soon  after  the  restoration  of  the  empire,  that  France 
for  "  the  first  time  enjoyed  the  happiness  of  possessing  in- 
stitutions  exclusively    French    and    original." '      As   to    the 


*  This  idea  has  been,  since,  carried  much  farther.  A  large  numl)er  of  persons, 
and,  it  would  seem,  all  imperialists,  love  to  dwell  upon  the  idea  that  imperial- 
ism represents  Latin  civilization,  opposite  to  Teutonic  unwieldy,  uncentralized, 
barbaric  freedom.  When  thus  Latinism  is  taken  as  a  distinctive  mark,  Roman 
imperialism  is  meant,  not  of  course  Republican  Roman  self-government.  The 
French,  in  trying  to  renovate  Latinism,  seem  to  fall,  as  to  principle,  into  an 
anachronism  not  di.ssimilar  to  that  into  which  the  Germans  fell  as  to  language 
when  they  officially  called  their  empire,  down  to  its  dissolution,  the  Holy  Roman 
Empire  of  the  Germans. 


294 


ON  CIVIL  LIBERTY 


originality,  we  would  only  observe  that  they  are  fac-similes 
of  what  Napoleon  I.  had  established,  and  that  he  copied  the 
senate,  as  he  did  the  eagle,  the  title  and  idea  of  emperor,  the 
name  of  legion,  of  prefect,  from  Rome,  unfortunately  at  her 
worst  period,  for  the  Roman  senate  during  the  better  time  was 
part  of  the  proud  Senatus  Populusque  Romanus ;  and  the 
corps  legislatif,  if  there  be  any  element  of  a  representative 
legislature  in  it,  is  not  of  French  origin;  if  it  be  a  mute  body, 
however,  there  is  no  originality  in  it  either.  Even  if  it  were 
as  the  emperor  proclaimed  it,  there  would  be  nothing  in  it  to 
be  rejoiced  at.  The  law  of  all  spreading  civilization  is  emigra- 
tion, transmission,  and  addition.  Ought  the  French  to  reject 
the  Grecian  orders  of  architecture  because  they  are  not 
French,  or  ought  our  medical  students  not  to  go  to  Paris 
because  the  French  science  of  medicine  is  not  ours  ?  Has 
modern  music  been  rejected  by  all  the  nations  except  the 
Italians  and  the  Germans  because  it  is  of  native  growth  with 
these  nations  ?  Ought  the  French  to  reject  saving-banks  be- 
cause they  were  first  established  and  developed  in  England, 
and  ought  the  English  to  discard  Jacquard's  loom  because 
invented  in  France  ? 

The  son  of  Sirach  said,  that  wisdom  was  hovering  like  the 
clouds  until  it  "took  root  in  an  honorable  people"^ — the 
Israelites.  It  is  thus  with  all  wisdom,  all  great  ideas  and 
comprehensive  systems.  They  take  root  with  "  an  honorable 
people,"  that  develops  them.  After  that  come  the  winds  of 
heaven  and  carry  the  seeds  far  and  about.  Patriotism  and 
national  vanity  are  not  the  same.  Patriotism  is  excellent  so 
long  as  it  is  the  love  of  its  own  to  such  a  degree  that  it  is 
ready  to  make  any  sacrifice  and  to  do  all  for  its  benefit ;  it  is 
not  a  virtue  when  it  consists  in  being  enamored  with  itself. 
Narcissus  is  not  the  symbol  of  patriotism,  but  Lycurgus  and 
Solon  are,  travelling  far  in  order  to  gather  knowledge  for  their 
own  countr)-. 

At  all  great  and  distinct  periods  of  modern  history,  there 


'  Ecclesiasticus,  xxiv.  12. 


AND  SELF-GOVERNMENT.  295 

are  a  general  idea  and  certain  adequate  forms  pervading  the 
whole.  Such  was  the  papal  period  at  the  beginning  of  the 
middle  ages ;  such  was  the  universal  feudal  system ;  such  the 
period  of  universities  springing  up  everywhere;  such  the 
periods  of  art;  such  the  periods  of  Abelard  and  scholastic 
philosophy ;  such  the  rising  of  free  cities  in  all  active  parts  of 
Europe ;  such  the  ardor  of  maritime  discovery  and  enthusiasm 
for  "  cosmography ;"  such  the  period  of  monasteries ;  such 
Protestantism;  and  such  is,  I  believe,  the  present  period  of 
civil  liberty,  which,  for  centuries  to  come,  will  be  essentially 
of  the  Anglican  type.  To  learn  liberty,  I  believe  that  nations 
must  go  to  America  and  England,  as  we  go  to  Italy  to  study 
music  and  to  have  the  vast  world  of  the  fine  arts  opened  to 
us,  or  as  we  go  to  France  to  study  science,  or  to  Germany 
that  we  may  learn  how  to  instruct  and  spread  education.  It 
was  a  peculiar  feature  of  antiquity  that  law,  religion,  dress, 
the  arts  and  customs,  that  everything  in  fact,  was  localized. 
Modern  civilization  extends  over  regions,  tends  to  make 
uniform,  and  eradicates  even  the  physical  differences  of  tribes 
and  races.'  Thus  made  uniform,  nations  receive  and  give 
more  freely.  If  it  has  pleased  God  to  appoint  the  Anglican 
race  as  the  first  workmen  to  rear  the  temple  of  liberty,  shall 
others  find  fault  with  Providence  ?     The  all-pervading  law  of 


'  The  mutual  influence  of  different  literatures  is  daily  extending.  Take  as  an 
instance  the  literature  of  England,  France,  Germany,  and  the  United  States, 
and  add  the  mutual  influence  of  the  journals  of  these  nations.  Then  consider 
how  many  of  the  elements  of  civilization  are  not  national,  but  common  to  all — 
the  alphabet,  the  numeric  signs,  with  the  decimal  system,  musical  notation  and 
music  itself,  commercial  usages  and  bookkeeping,  international  law,  social  inter- 
course and  laws  of  politeness;  the  visiting-card,  the  railway,  the  steamboat,  the 
post-office,  the  institution  of  money,  the  bill  of  exchange,  insurance — indeed,  it 
is  impossible  to  enumerate  all  the  agreements  of  nations  belonging  to  our  race. 
I  shall  only  add  the  dress,  the  furniture,  and  even  cookery. 

The  most  recent  and  a  choice  illustration  of  progressive  uniformity  of  our  race 
and  its  civilization,  is  the  adoption  of  Commander  Maury's,  U.S.N.,  plan  of  a 
uniform  maritime  observation  and  record,  adopted  by  many  governments  in 
consequence  of  the  naval  congress  at  Brussels,  in  1853.  May  a  uniform  standard 
of  value  soon  follow.  The  wide-spread  dollar  or  scudo  has  prepared  the  way 
for  it. 


296  ON  CIVIL  LIBERTY 

civilization  is  physical  and  mental  mutual  dependence,  and 
not  isolation. 

Many  governments  deny  liberty  to  the  people  on  the  ground 
that  it  is  not  national ;  yet  they  copy  foreign  absolutism. 
There  is  doubtless  something  essential  in  the  idea  of  national 
development,  but  let  us  never  forget  two  facts  :  Men,  however 
different,  are  far  more  uniform  than  different ;  and  most  of  the 
noblest  nations  have  arisen  from  the  mixture  of  others. 


AND  SELF-GOVERNMENT.  297 


CHAPTER   XXV. 

THE    INSTITUTION. ITS    DEFINITION. ITS    POWER    FOR   GOOD 

AND    EVIL. 

It  has  been  shown  that  civil  liberty,  as  we  understand  and 
cherish  it,  consists  in  a  large  amount  of  individual  rights, 
checks  of  power,  and  guarantees  of  self-government.  We  have 
more  or  less  fully  indicated  that  self-government,  in  the  sense 
in  which  we  take  it,  and  in  connection  with  liberty,  consists  in 
the  independence  of  the  whole  political  society,  in  a  national 
representative  government  and  local  self-government,  which 
implies  that  even  general  laws  and  impulses  are  carried  out 
and  realized,  as  far  as  possible,  by  citizens  who,  in  receiving 
an  office,  be  it  by  election  or  appointment,  essentially  remain 
citizens,  and  do  not  become  members  of  a  hierarchy  of  place- 
men.^   We  have  seen  that  self-government,  in  general,  requires 


'  At  a  sumptuous  ball,  which  the  city  of  Paris  gave,  in  the  year  1851,  to  the 
commissioners  of  the  London  Exhibition,  I  was  sitting  in  a  corner  and  reflecting 
on  the  police  officers  in  their  uniforms  and  the  actual  patrols  of  the  military 
pompiers  in  the  very  midst  of  the  festive  and  crowded  assemblage,  when  I  was 
introduced  to  one  of  the  first  statesmen  of  France  and  a  liberal  member  of  the 
national  assembly.  He  had  been  at  London,  to  view  the  exhibition.  It  was  the 
first  time  he  had  visited  England.  "  Do  you  know,"  said  he,  "  what  struck  me 
most — far  more  than  the  exhibition  of  works  of  art  and  industry?  It  was  the 
exhibition  of  the  civistne  anglais  (this  was  the  term  he  used)  in  the  London 
police."  It  may  be  readily  supposed  that  an  American  citizen  turned  his  face 
toward  the  speaker,  to  hear  more,  when  the  Frenchman  continued :  "  I  am  in 
earnest.  The  large  number  of  policemen,  with  their  citizen  appearance,  although 
in  uniform,  seeming  to  be  there  for  no  other  purpose  than  to  assist  the  people — 
and  the  people  ever  ready  to  assist  them — this  is  what  has  most  attracted  my 
attention.  Liberty  and  the  government  of  law  are  even  depicted  in  their  police, 
where  we  should  seek  it  least.  What  is  it  that  strikes  you  most  in  coming 
here  ?" 


298 


ON  CIVIL  LIBERTY 


that  there  be  an  organism  to  elaborate  and  ascertain  public 
opinion,  and  that,  when  known,  it  shall  pass  into  law,  and, 
plainly,  rule  the  rulers ;  that  government  interfere  as  an  ex- 
ception, and  not  as  the  rule ;  and  that,  on  the  other  hand, 
self-government  neither  means  self-absolutism,  nor  absence  of 
rule,  but  that,  on  the  contrary,  liberty  requires  a  true  govern- 
ment. A  weak  government  is  a  negation  of  liberty;  it  cannot 
furnish  us  with  a  guaranteeing  power,  nor  can  it  procure 
supremacy  for  public  will.  In  other  spheres  it  may  be  true 
that  license  is  exaggerated  liberty,  but  in  politics  there  can  be 
nothing  more  unlike  liberty  than  anarchy. 

We  have  still  to  ascertain  how  this  system  of  civil  liberty 
is  to  be  realized.  Liberty  cannot  flourish,  nor  can  freedom 
become  a  permanent  business  of  actual  life,  without  a  perma- 
nent love  and  a  habit  of  liberty.  How  is  the  one  to  be  engen- 
dered, and  the  other  to  be  acquired? 

There  is  no  mathematical  formula  by  which  liberty  can  be 
solved,  nor  are  there  laws  by  which  liberty  can  be  decreed, 
without  other  aids.  We  gain  no  more  by  throwing  power  un- 
checked into  the  hands  of  the  people.  It  remains  power,  and 
is  not  liberty,  and  people  still  remain  men.  Flattery  does  not 
change  us,  for  we  are  all 


"  The  American,"  I  replied,  "  in  visiting  the  continent  of  Europe,  is  most 
impressed  by  the  fact  that  the  whole  population,  from  Moscow  to  Lisbon,  seems 
to  be  divided  into  two  wholly  distinct  parts — the  i-ound  hats,  the  people,  and  the 
cocked  hats,  the  visible  government.  The  two  layers  are  as  distinct  as  the  hats, 
and  the  traveller  set-s  almost  as  many  of  the  one  form  as  of  the  other." 

There  are  large  police  establishments  in  all  European  states.  Densely-peopled 
countries  require  them.  The  different  spirit  and  organization,  however,  of  these 
establishments  are  most  characteristic.  Nothing,  perhaps,  shows  more  the  char- 
acter of  a  citizen-government  in  England  than  the  wide-spread  institution  of  the 
police,  which  has  developed  itself,  under  Sir  Robert  Peel,  out  of  the  ancient 
constable.  It  has  great  power;  it  has  preventive,"  detective,  and  custodial 
authority;  yet  it  is  supported  by  the  citizens,  and  no  one  fears  that  it  ever  will  be 
used  as  an  institution  of  political  espionage  and  denunciation — as  delatores  of  old 
and  mouchards  of  modern  times.  It  is  strictly  under  the  public  law,  and  that 
implies  under  publicity.  There  is  a  whole  literature  on  this  subject,  but  I  know 
of  no  brief  paper  exhibiting  so  well  its  essential  character  as  the  seventh  para- 
graph of  Mittermaier's  English,  Scottish,  and  American  Penal  Processes. 


AND  SELF-GOVERNMENT.  299 

"  Obnoxious,  first  and  last, 
To  basest  things," ' 

and  thus  flattery  is  no  foundation  for  liberty.  Each  one  of  us 
may  be  declared  a  sovereign,  as  every  Frenchman  was  desig- 
nated in  a  solemn  circular,^  by  the  provisional  government;  or 
the  people  may  be  called  almighty — le  peuple  tout-puissant — 
as  in  the  midst  of  loathsome  political  obscenity  they  were 
termed  by  the  dictatorial  government  when  they  were  expected 
and  led  to  vote  for  a  new  emperor,  and  thus  by  an  act  of 
omnipotence  to  extinguish  every  vestige  of  their  power.  They 
were  asked  to  divest  themselves  of  this  very  omnipotence, 
which  nevertheless  is  exclusively  claimed  for  the  nation  as 
inherent  in  its  own  nature,  and  to  submit  their  omnipotence 
to  a  still  greater  power  of  one  man.  Nothing  of  all  this  is 
liberty.  Self-immolation,  even  where  it  is  an  actual  and  not  a 
theoretical  act  of  free  agency,  is  not  life. 

Enthusiasm  is  necessary  for  liberty,  as  for  every  great  and 
noble  work,  but  enthusiasm  comes  and  goes  like  the  breezes 
of  the  ocean.  How  shall  they  be  used  for  the  positive  interests 
of  the  navigator  ?  Enthusiasm  is  not  liberty,  nor  does  the 
reality  of  liberty  consist  in  an  sesthetical  love  of  freedom.  The 
poet  may  be  as  much  the  priest  of  liberty  as  he  is  the  seer  of 
love,  but  poetry  is  no  more  the  thing  it  sings  than  theory  is 
the  deed,  or  ethics  the  character  of  man. 

Education  has  been  considered  by  many  as  the  true  basis 
of  popular  liberty.  It  is  unquestionably  true,  and  proudly  ac- 
knowledged by  every  lover  of  modern  popular  liberty,  that  a 
wide-spread  and  sound  education  is  indispensable  to  liberty. 
But  it  is  not  liberty  itself,  nor  does  it  necessarily  lead  to  it. 


'  Paradise  Lost,  book  9,  line  170. 

■  In  a  circular,  sent  by  the  provisional  government  all  over  France  before  the 
general  election  for  the  national  constituent  assembly,  in  1848,  was  this  sentence: 
"  Every  Frenchman  of  the  age  of  manhood  is  a  political  citizen;  every  citizen  is 
an  elector;  every  elector  is  a  sovereign.  There  is  no  one  citizen  who  can  say  to 
another:  'You  are  more  of  a  sovereign  than  I.'  Contemplate  your  power,  pre- 
pare to  execute  it,  and  be  worthy  of  entering  on  the  possession  of  your  kingdom." 
The  author  of  these  phrases  is  Mr.  de  Lamartine,  who  says,  in  his  Revolutipn  of 
1S4S:  "  The  reign  of  the  people  is  called  the  republic." 


3C0 


ON  CIVIL  LIBERTY 


Prussia  is  one  of  the  best  educated  of  countries,  but  liberty- 
has  not  yet  found  a  dwelHng-place  there.  The  Chinese  govern- 
ment is  avowedly  based  upon  general  education  and  democratic 
equality  in  the  hierarchy  of  officers,  but  China  has  never  made 
a  step  in  the  path  of  liberty.  Education  is  almost  like  the 
alphabet  it  teaches.  It  depends  upon  what  we  use  it  for. 
Many  despotic  governments  have  found  it  their  interest  to 
promote  popular  education,  and  the  schoolmaster  alone  cannot 
establish  or  maintain  liberty,  although  he  will  ever  be  acknowl- 
edged as  an  efficient  and  indispensable  assistant  in  the  cause 
of  modern  freedom.     Liberty  stands  in  need  of  character. 

How  then  is  real  and  essential  self-government,  in  the  ser- 
vice of  liberty,  to  be  obtained  and  to  be  perpetuated  ?  There 
is  no  other  means  than  a  vast  system  of  institutions,  whose 
number  supports  the  whole,  as  the  many  pillars  support  the 
rotunda  of  our  capitol.  They  may  be  modest  in  their  appear- 
ance, and  even  unseen  by  the  passer-by,  as  those  pillars  are, 
but  they  are  nevertheless  the  real  support. 

Let  us  then  consider  the  nature  of  institutional  liberty  more 
closely.  In  order  to  appreciate  this  subject,  it  will  be  desirable 
to  inquire  first  into  the  nature  of  institutions  in  general. 

According  to  the  highest  meaning  which  the  term  has  grad- 
/  ually  acquired,  an  institution  is  a  system  or  body  of  usages, 
laws,  or  regulations  of  extensive  and  recurring  operation,  con- 
taining within  itself  an  organism  by  which  it  effects  its  own 
independent  action,  continuance,  and  generally  its  own  farther 
development.  Its  object  is  to  generate,  effect,  regulate,  or 
sanction  a  succession  of  acts,  transactions,  or  productions  of  a 
peculiar  kind  or  class.  The  idea  of  an  institution  implies  a 
degree  of  self-government.  Laws  act  through  human  agents, 
and  these  are,  in  the  case  of  institutions,  their  officers  or 
members. 

Welire^ikewise  in  the  habit  of  calling  single  laws  or  usages 
(which  are  laws  of  spontaneous  growth)  institutions,  if  their 
operation  is  of  vital  importance  and  vast  scope,  and  if  their 
continuance  is  in  a  high  degree  independent  of  any  interfering 
power.     These  two  characteristics  establish  a  close  affinity 


AND  SELF-GOVERNMENT. 


301 


between  such  laws  and  institutions  proper  as  they  have  been 
just  defined.  Thus,  we  call  marriage  an  institution  in  consid- 
eration of  its  pervading  importance,  its  extensive  operation,  the 
innumerable  relations  it  affects,  and  the  security  which  its  con- 
tinuance enjoys  in  the  conviction  of  almost  all  men,  against 
any  attempts  at  its  abolition.  Indeed,  we  generally  mean  by 
the  term  Institution  of  Marriage,  pretty  much  the  institution 
of  the  family,  that  is,  the  family  as  a  community  sanctioned 
and  fostered  by  the  law,  by  authoritative  usages,  and  by 
religion — the  cluster  of  laws  and  usages,  social,  political,  and 
religious,  which  relate  to  this  well-defined  community. 

It  always  forms  a  prominent  element  in  the  idea  of  an  insti- 
tution, whether  the  term  be  taken  in  the  strictest  sense  or  not, 
that  it  is  a  group  of  laws,  usages,  and  operations  standing  in 
close  relation  to  one  another,  and  forming  an  independent 
whole  with  a  united  and  distinguishing  character  of  its  own. 

A  system  of  laws  very  often  consists  of  a  variety  of  systems, 
each  enjoying  a  proportionate  degree  of  self-government,  as  a 
general  organism  is  composed  of  many  organs  with  distinct  and 
peculiar  functions  of  their  own,  although  working  in  unison 
and  according  to  the  principles  and  regulative  laws  of  the 
general  organism.  We  have  many  institutions  which  consist 
of  a  number  of  institutions  either  of  the  first  mentioned  ot 
second  sort;  and,  as  institutions  may  exist  in  all  the  great 
spheres  of  human  action,  it  naturally  results  that  there  are  in- 
stitutions of  the  greatest  variety  in  character  and  extent.  A 
bank,  parliament,  a  court  of  justice,  the  bar,  the  church,  the 
mail,  a  state,  are  institutions,  as  well  as  the  Lord's  supper,  a 
university,  the  Inquisition,  all  the  laws  relating  to  property, 
the  sabbath,  the  feudal  system.  The  Roman  triumph,  the 
Hindoo  castes,  the  bill  of  exchange,  the  French  Institute,  our 
presidency,  the  New  York  tract  society,  the  Areopagus  or 
the  Olympic  games,  an  insurance  company,  the  janizaries, 
the  English  common  law,  the  episcopate,  the  tribunate,  the 
"captainship"  of  a  fishing-fleet  on  the  banks,  "the  crown," 
the  German  book-trade,  the  Goldsmiths'  Company  at  London, 
our  senate,  our  representatives,  our  congress,  our  state  legis- 


302 


ON  CIVIL   LIBERTY 


latures,  courts  of  conciliation,  the  justiceship  of  the  peace,  the 
priesthood,  a  confederacy,  the  patent,  the  copyright,  hospitals 
for  lunatics,  estates,  the  East  India  Company — all  these  and 
thousands  more  are  or  were  institutions  in  the  one  or  the  other 
adaptation  of  the  term.  Whether  they  are  good  or  bad,  ex- 
pedient or  unwise,  human  or  divine,  has  nothing  to  do  with 
the  distinctive  character  of  an  institution  as  such. 

"  The  School,"  that  is  to  say,  the  whole  school  system,  as 
well  as  the  modern  national  army,  in  Prussia,  have  been  called 
institutions,  when  it  was  desired  to  express  the  idea  that  they 
are  establishments  of  vast  importance  and  that  they  enjoy  a 
supposed  degree  of  independent  vitality.  Baron  Bunsen,  in 
his  Hippolytus,  calls  the  book  of  common  prayer  a  "  national 
institution."' 

The  noun  Institotion  is,  indeed,  formed  of  the  verb  to  Insti- 
tute, but  it  does  not,  on  that  account,  express,  as  noun,  the 
action  or  the  effect  of  that  which  constitutes  the  meaning  of 
the  verb.-  The  sense  of  the  noun  frequently  diverges  from 
that  of  the  verb,  in  all  languages,  and  especially  so  in  the 
EngHsh."^     We  institute  an  inquiry ;  but  an  inquiry  is  not  an 


'  Vol.  iii.  p.  293. — A  member  of  the  late  French  national  a^^sembly,  speaking  ot 
the  enormous  California  lottery,  which  was  then  in  its  full  ruinous  operation  in 
France,  used  the  expression  :  "  This  is  not  a  lottei-y ;  it  is  a  series  of  lotteries  ;  I 
ought  to  say  an  institution  of  lotteries." 

The  exaggeration  was  carried  farthest  when  an  English  newspaper  called  the 
Duke  of  Wellington  an  institution.  We  see,  however,  through  the  exaggeration, 
the  original  sense  universally  attributed  to  the  term. 

'  The  word  is  a  finished  and  a  given  thing ;  the  idea  is  in  a  constant  state  of 
expansion  or  contraction,  far  exceeding  the  formative  powers  even  of  the  most 
perfect  language,  so  that  frequently  a  whole  class  of  words  derived  from  the  same 
root  retains  little  in  common  but  an  association  of  ideas,  which  often  almost 
vanishes.  The  history  of  the  changing  meaning  of  man's  words  is  instructive, 
and  equally  so  the  history  of  the  changing  word.  I  need  only  allude  to  such  re- 
markable words  as  Stare,  Status,  Statute,  Stand,  Establishment,  Stabilis,  Estate, 
and  the  whole  history  through  which  the  meaning  of  the  word  State  has  passed 
and  is  still  passing  on  the  one  hand,  and  the  many  branches  such  as  Stable,  Sta- 
tion, Statistics;  or  we  may  take  Civis,  Civitas,  Civilis,  Civilitas,  Civility,  Civil 
(in  its  two  distinct  terms,)  Civilization,  Citizen;  Nascor,  Nation,  National;  Pop- 
ulus,  Fublicus  (for  populicus,)  Public,  People,  Popular;  Gignere,  Genus,  Gens, 
Gentile,  Gentle,  Genteel,  Gentleman,  with  the  different  meanings  through  which 


A  ND  SELF-  G  O  VERNMENT. 


503 


institution  ;  and,  on  the  other  hand,  there  are  many  institutions 
which  have  never  been  instituted.     They  have  grown. 

This  class  of  institutions  forms  in  a  certain  point  of  view 
the  most  important,  as  will  be  admitted  when  we  consider  that 
the  jury,  systems  of  common  law,  the  British  parliament  and 
our  bicameral  systems  of  the  legislature,  most  governments 
and  the  states  themselves,  are  grown  institutions. 

The  English  language  has  but  one  term  for  both,  the  cres- 
cive  institutions,  as  they  might  be  termed,  and  the  instituted 
or  enacted  institutions,  such  as  a  corporation,  congress,  or  our 
legislatures ;  whose  institutors  are  the  people  enacting  the 
constitutions.  Grown  or  spontaneous  institutions  are  not  ill 
defined  or  loosely  distinguished  from  one  another  on  that 
account;  they  may  be  as  individualized  as  a  shady  tree  in  the 
forest ;  and  enacted  or  contrived  institutions  are  not  confined 
and  narrow  on  that  account.  They  may  be  as  extensive  in 
action  as  an  Atlantic  steamship.  The  speakership  is  a  well- 
defined  crescive  institution ;  the  supreme  court  of  the  United 
States  is  a  vast  enacted  institution. 

Most  of  the  institutions  which  owe  their  origin  to  spon- 
taneous growth  have  become  in  course  of  time  mixed  institu- 
tions. Positive  legislation  has  become  mingled  with  self-grown 
usage,  as  is  the  case  with  the  institution  of  property,  the  jur)', 
the  bill  of  exchange,  the  Hindoo  castes,  money. 

It  is  for  the  purpose  of  comprehending  the  grown  as  well 
as  the  established  institutions,  that  the  words  "  usages,  laws, 
or  regulations  "  have  been  employed  in  the  definition  at  the 
head  of  this  discussion. 

Dr.  Thomas  Arnold,  whose  name  few  mention  without 
veneration,  says,  at  the  beginning  of  his  Lectures  on  History : 
"  I  would  first  say  that  by  institution  I  wish  to  understand 
such  officers,  orders  of  men,  public  bodies,  settlements  of 
property,  customs  or  regulations,  concerning  matters  of  ^q\\- 


this  last  word  has  passed  from  the  time  when  it  meant  a  man  of  gentle — that  is, 
not  vulgar,  not  common-blood  or  e.xtraction,  to  its  present  import,  which  relates 
exclusively  to  character  and  breeding.  Breeding  itself  might  be  mentioned 
here. 


304 


ON  CIVIL   LIBERTY 


eral  usage,  as  do  not  owe  their  existence  to  any  express  law 
or  laws,  but  having  originated  in  various  ways,  at  a  period  of 
remote  antiquity,  are  already  parts  of  the  national  system,  at 
the  very  beginning  of  our  historical  view  of  it,  and  are  recog- 
nized by  all  actual  laws,  as  being  themselves  a  kind  of  primary 
condition  on  which  all  recorded  legislation  proceeds.  And  I 
would  confine  the  term  laws  to  the  enactments  of  a  known 
legislative  power  at  a  certain  known  period." 

It  will  be  seen  that  this  writer  restricts  the  meaning  of  the 
term  institution  to  what  has  been  called  grown  institutions; 
nor  does  he  do  this  with  philosophical  cogency.  He  enu- 
merates instances  rather  than  gives  a  definition ;  and  it  seems 
arbitrary  to  bestow  the  term  on  grown  institutions  only.  It 
is  contrary  to  universal  usage,  as  well  as  to  the  necessity  of 
the  case.  What  is  an  instituted  legislature  of  Wisconsin,  an 
incorporated  bank,  an  orphan  asylum,  or  a  chartered  city 
government,  if  it  be  not  an  institution  ?  According  to  Dr. 
Arnold,  scarcely  a  pure  institution  exists,  for  in  all  or  nearly 
all  institutions  positive  enactments  have  become  mixed  up  with 
the  unenacted  usage,  as  has  been  mentioned  before. 

Nor  is  it  accurate  to  call  certain  "  officers  or  orders  of  men" 
institutions.  What  unites  the  individual  officers  into  an  insti- 
tution ?  or  how  can  the  institution  outlast  the  individual  offi- 
cers existing  at  any  given  period  ?  How  could  the  house  of 
representatives  of  congress  be  an  institution,  which  every  one 
calls  it,  and  which  assuredly  it  is,  when  its  members  cease  to 
be  such  every  two  years  ?  They  are  but  temporary  members 
of  the  perpetual  institution.  The  institution  itself  is  the 
organic  law  in  the  Constitution  of  the  United  States  which 
provides  for  the  organization  and  periodical  renewal  of  the 
house.  The  same  is  true  with  reference  to  the  state  and  its 
citizens,  living  at  any  given  time.'     Citizens  are  born  and  die, 


'  [If  Dr.  Arnold  means  orders  of  men  embodying  a  certain  principle,  idea,  or 
political  habit  of  a  nation,  he  cannot  be  found  fault  with.  So  of  officers.  A 
tribune  and  the  tribuneship  cannot  be  separated.  He  conceived  of  the  officer  as 
gradually  reaching,  in  old  time,  certain  political  functions,  which  could  have 
otherwise  no  existence.] 


AND  SELF-GOVERNMENT.  305 

but  the  state  is  a  continuum.  The  jury  of  the  common  law 
is  an  institution  now  spreading  over  the  territory  of  at  least 
sixty-eight  millions  of  people,  but  the  jurors  form  only  very 
transitoiy,  although  continually  repeated,  representations  or 
embodiments  of  the  institution.' 

It  is  this  very  fact,  passed  over  by  Dr.  Arnold,  that  consti- 
tutes one  of  the  most  important  practical  features  of  the 
institution.  It  spreads  the  framework  of  the  same  system  of 
laws  over  sets  of  men  periodically  renewed,  prescribing  their 
Ime  of  action,  so  that  it  becomes  a  consistent  continuation  of 
that  which  their  predecessors  have  done,  or,  to  express  it  in 
other  words,  it  breathes  the  same  leading  principles  into 
different  aggregates  of  men  and  different  generations,  as  the 
same  principles  in  varying  matter  produce  and  reproduce  the 
same  seasons.  The  institution  thus  insures  perpetuity,  and 
renders  development  possible,  while  without  it  there  is  little 
more  than  subjective  impulsiveness,  which  may  be  good  and 
noble,  or  ruinous  and  purely  passionate,  but  always  lacks  con- 
tinuity, and  consequently  development  and  safe  assimilating 
growth.  A  market  assembly,  convened  at  stated  intervals, 
without  institutions,  can  produce  little  more  than  a  succession 
of  instinctive  or  impulsive  actions — the  more  impulsive  the 
more  exciting  the  subject  is  on  which  the  uninstitutional  mul- 
titude acts.     The  same  applies  to  larger  communities,  if  they 


»  The  term  Institute  seems  to  differ  from  Institution,  according  to  present 
usage,  in  this,  that  the  first,  when  it  does  not  mean  the  initiatory  knowledge  of 
a  wide  system  of  science,  (as  the  institutes  of  the  pandects,  of  medicine,)  is  chiefly 
used  as  a  noun  proper  for  an  institution  of  learning  or  the  diffusion  of  knowl- 
edge, for  instance  French  Institute,  Mechanics'  Institute.  It  may  be  used  as  a 
generic  term  for  institutions  of  diffusion  of  knowledge  of  a  higher  character;  but 
it  is  frequently  abused  in  these  cases.  Schools  of  some  pretence  are  called  in- 
stitutes, with  that  deplorable  extravagance  with  which  common  schools  are  called 
academies,  common  colleges  universities,  auction  rooms  auction  marts,  a  single 
and  simple  pereon  a  party,  every  chairman  a  president,  and  which  has  so  sadly 
invaded  our  manly  language  that  many  superlative  words,  such  as  splendid, 
magnificent,  giantlike,  transcendent,  illustrious,  and  hundreds  of  others,  can 
hardly  be  any  longer  used  by  a  sober  and  vigorous  writer,  and  have  become 
worth  little  more  than  old  coins,  once  good,  but  now  clipped,  punched,  and 
sweated  by  unlawful  usage. 

20 


3o6  ON  CIVIL  LIBERTY 

act  without  institutions,  and  in  this  resemble  the  Indians  of 
the  pampas,  who  meet  and  act  on  each  question  by  simple 
majority,  unguided,  unmoulded,  unrestrained  by  permanent 
laws  and  usages,  or  without  a  maturing  organism. 

There  is  nothing  so  void  of  lasting  good  as  that  history 
which  consists  of  a  mere  succession  of  acts  through  which 
there  runs  no  connecting  idea,  and  which  show  neither  growth 
nor  expansion.  It  sinks  to  mere  anecdotical  chronology.  All 
that  is  deeply  good  or  truly  great,  and  not  only  vast,  in  the 
sense  of  Attila's  conquest,  requires  development  and  progress. 
Impulsiveness  without  institutions,  enthusiasm  without  an 
organism,  may  produce  a  brilliant  period  indeed,  but  it  is 
generally  like  the  light  of  a  meteor.  That  period  of  Portu- 
guese history  which  is  inscribed  with  the  names  of  Prince 
Henry  the  Navigator,  Camoens,  and  Albuquerque  is  radiant 
with  brilliant  deeds,  but  how  short  a  day  between  long  and 
dreary  nights !  Portugal  had  no  institutions  to  perpetuate 
her  glory,  and  that  splendor  was  but  the  accidental  effect  of 
fortunate  circumstances  happening  to  combine  at  that  period. 
Noble  national  impulses,  without  institutions,  are  at  best 
happy  accidents. 

When  it  is  said  that  one  of  the  requisites  of  the  institution 
is  that  it  shall  contain  within  itself  an  organism  by  which  it 
effects  its  own  independent  action  and  continuance,  it  is  obvious 
that  this  must  be  taken  in  a  comparative  sense,  because  every 
institution  ought  to  stand  in  connection  with  others,  and  is 
frequently  a  minor  organism  of  a  more  comprehensive  one;  or 
an  institution  may  be  actually  the  creature  of  the  legislature, 
and  the  legislature  itself  may  be  the  creature  of  the  constitu- 
tion, which  may  have  emanated  from  the  sovereign  will  of  the 
people.  Yet  we  call  a  body  of  laws  or  usages  an  institution 
only  when  we  unite  the  idea  of  an  independent  individuality 
with  it.  It  must  have  its  own  distinct  character,  its  own  pecu- 
liar action,  and  it  must  not  owe  its  continuance  to  the  arbi- 
trary mandate  of  a  will  foreign  to  it.  Independence  does  not 
mean  disjunction  or  isolation. 

If  this  were  not  so,  we  would  not  stand  in  need  of  the 


AND  SELF-GOVERNMENT.  307 

term  institution,  and  the  simple  term  of  Law  or  Ordinance 
would  suffice. 

Neither  the  Romans  nor  the  Greeks  had  a  separate  term  for 
institution  ; '  indeed,  the  Greeks  had  not  even  distinct  words  for 
the  Latin  jus  and  lex,  a  paucity  of  language  which  we  share 
with  them ;  and  if  the  Romans  had  no  word  for  institution, 
although  they  had  many  real  institutions,  we  have  many  im- 
portant separate  systems  of  law,  such  as  the  law  of  insurance, 
of  bailment,  the  maritime  law,  without  having  an  appropriate 
term  for  separate  bodies  of  laws  and  rules.  Nor  did  the 
Roman  probably  feel  the  want  of  a  word  for  Institution,  for 
the  same  reason  that  he  expressed  time  by  saying:  "Two 
hundred  years  after  the  founded  city.'"  The  thing  itself,  the 
city,  was  in  his  mind.  We  would  say :  Two  hundred  years 
after  the  foundation  of  the  city.  The  foundation  of  the  city, 
an  abstraction,  is  in  our  mind.  The  Roman  said  Respublica, 
the  Public  Thing,  and  upon  this  raft  of  words,  strong  but 
coarse,  his  own  political  progress  and  civic  life  forced  him  to 
put  a  heavy  freight  of  meaning,  until  it  came  to  designate  the 
vast  idea  Commonwealth.  The  Roman  was  adverse  to  ab- 
stract terms.^     Abstracting  was  a  process  at  which  he  was  no 


*  The  Latin  Institutum  does  not  exactly  correspond  to  our  word  institution. 
It  means  a  purpose,  object,  plan,  or  design,  and,  finally,  a  settled  procedure,  by 
which  it  is  intended  to  obtain  a  certain  object;  hence  a  uniform  method  of  action, 
£0  be  observed  when  similar  cases  occur.  Institutum  is  very  frequently  used  in 
conjunction  with  consuetudo,  and  often  means  nothing  more  than  settled  usage 
with  reference  to  certain  cases.  Itistittituin  thus  designates  one  of  the  elements 
of  our  Institution,  but  it  does  not  include  the  idea  of  a  distinctly  limited  system 
of  laws  or  usages  with  a  considerable  degree  of  autonomy,  nor  does  it  compre- 
hend the  idea  of  our  enacted  institutions.  Institutum  retains  the  idea  of  usage 
throughout.  Still,  it  is  readily  seen  how  the  Roman  word  institutum  was  natu- 
rally changed  and  expanded  into  the  modern  word  Institution. 

2  The  Roman  shunned  abstraction  even  though  he  should  become  illogical.  He 
said  :  In  medias  res,  into  the  middle  things,  instead  of  into  the  middle  of  things, 
and  we  moderns  abstract  even  against  all  sense.  I  read  but  yesterday  in  large  letters 
over  a  shop  this  word — Carpetings.  Here  we  have  first  an  unmeaning  abstrac- 
tion of  a  simple  and  sound  word,  carpet,  and  then  a  plural  is  made  of  the  more 
abstract  term.  The  Americans,  altogether  inclined  to  use  pompous  and  grandilo- 
quent words,  are  also  given  to  use  abstract  terms,  or  those  that  approach  abstrac- 
tion, far  more  than  the  English.     The  sign  of  the  smallest  baker's  shop  will  not 


3o8 


ON  CIVIL  LIBERTY 


good  hand.^  The  Greeks,  however,  may  have  lacked  a  proper 
term  for  the  idea  institution,  although  so  ready  to  abstract, 
and  possessed  of  a  plastic  language,  which  offered  peculiar 
facilities  for  the  formation  of  abstract  terms,  while  yet  the 
people  were  characterized  by  an  eminently  political  tempera- 
ment, simply  because  the  Greeks  were,  comparatively  speak- 
ing, not  a  tribe  of  a  strongly  institutional  bias.  They  were 
not  prone  to  establish  political  institutions,  and,  with  the  ex- 
ception of  the  Dorians,  preferred  to  bring  everything  under 
the  more  or  less  direct  will  of  the  mass.  But,  although  the 
Greeks  abstracted  well,  and  had  a  language  in  which  they 
could  readily  cast  any  abstraction,  it  must  not  be  forgotten 
that  they  rather  restricted  their  terms  of  abstraction  to  philo- 
sophical speculation,  and  in  all  the  other  spheres  of  life  and 
action  they  manifested  the  true  antique  spirit,  that  of  positive 
reality.  Their  style  and  expressions  accorded  with  this  bias. 
They  might  as  easily  as  ourselves  have  said  the  Union  or  the 
League  of  the  Achaeans,  but  their  word  for  our  union  was 
simply  "  the  common  body,"  (to  xov/ov.^ 

Few  nations  have  evinced  a  greater  and  more  constant  tend- 
ency to  build  up  institutions,  or  to  cluster  together  usages  and 
laws  relating  to  cognate  subjects  into  one  system  and  to  allow 
it  its  own  vitality,  than  the  Romans  in  their  better  period.  The 
Greeks,  as  has  been  observed,  were  far  less  an  institutional 
people.  There  is  a  degree  of  adhesiveness  and  tenacity — a 
willingness  to  accumulate  and  to  develop  precedents,  and  a 


be  John  Smith,  Baker,  but  Bakery  by  John  Smith,  perhaps  even  American 
Bakery,  or,  should  it  happen  to  be  near  the  sea,  Ocean  Bakery.  A  common 
shop  of  a  green-grocer  in  the  second  largest  city  of  the  United  States,  calls  itself 
United  States  Market.  The  negroes  have  caught  the  fever.  Not  long  ago  I  saw 
a  common  shanty,  erected  in  a  Southern  forest  to  accommodate  travellers  with 
coffee  while  their  luggage  was  ferried  over  a  river,  adorned  with  the  following 
words  on  a  pine  board :  Jenny  Lind  and  Sontag  Hotel.  The  railway  bridge  had 
been  carried  away,  and  this  caf6  was  erected  for  a  few  days  only. 

'  The  best  grammarians  tell  us  that  Latin  nouns  ending  in  io,  and  adjectives 
ending  in  His,  (that  is,  abstract  terms,)  must  be  used  with  circumspection,  and 
not  without  good  authority,  since  they  are  comparatively  rare  in  the  best  writers. 
It  speaks  volumes  concerning  the  Roman  character  and  mental  constitution. 


AND  SELF-GOVERNMENT.  309 

political  patience  to  abide  by  them — necessary  for  the  growth 
of  strong  and  enduring  institutions,  which  little  agreed  with 
the  brilliant,  excitable,  and  therefore  changeable  Greeks.  This 
was  at  least  the  case  with  the  Athenians  and  all  their  kindred, 
and  to  them  belongs  the  main  part  of  all  that  we  honor  and 
cherish  as  Grecian. 

The  London  Times  has  called  the  Queen  of  England  an 
institution.  This  is  rhetorically  putting  the  representative  for 
the  thing — the  queen  for  the  crown,  which  itself  is  a  figura- 
tive expression  for  the  kingly  element  of  the  British  polity. 
Nevertheless,  the  meaning  of  the  position  that  the  Queen  of 
England  is  an  institution,  is  correct  and  British.  It  originated 
from  a  conviction  that  the  monarch  of  Great  Britain  is  not 
such  by  his  own  individuality,  that  he  is  not  appointed  by  a 
superior  power  or  divine  right,  but  that  he  enjoys  his  power  by 
the  law  of  the  land,  which  confines  and  regulates  it.  It  means 
that  he  is  the  chief  office-bearer,  or,  it  may  be,  the  chief 
emblem-bearer,  of  a  vast  institution  which  forms  an  integral  part 
of  the  still  more  comprehensive  institution  called  the  British 
government  or  the  state.^     In  the  same  way  are  the  lord  chan- 


*  The  reader  who  desires  to  become  acquainted  with  the  opposite  view  must 
turn  to  the  Christian  Politics,  by  Rev.  \Vm.  Sewell,  Fellow  and  Subrector  of 
Exeter  College,  London,  1848  ;  a  book  which  carries  out  the  views  of  Filmer  to  an 
extent  which  that  apologist  of  absolutism  never  contemplated.  It  may  be  fairly 
considered  to  occupy  the  point  opposite  to  that  of  the  most  rabid  socialist  of 
France ;  and,  according  to  the  rule  that  we  ought  to  dwell  on  works  which  carry 
their  principles  to  the  fullest  length,  no  matter  what  those  principles  maybe,  it  is 
worth  the  student's  while  to  make  himself  acquainted  with  it.  If  he  can  get 
through  the  whole,  however,  he  is  more  patient  than  I  found  it  possible  to  be. 
According  to  Mr.  Sewell,  there  is  but  one  true  government,  absolute  monarchy, 
demanding  absolute  obedience;  the  king  makes  the  state  and  the  view  I  have 
endeavored  to  prove  in  my  Ethics,  that  the  state,  despite  of  its  comprehensive  im- 
portance, still  remains  a  means  to  obtain  certain  ends,  is  attacked  as  the  opinion 
of  mere  "  philosophers."  The  king,  the  house  of  lords,  and  that  of  the  commons, 
as  they  ought  to  be  considered,  indicate,  according  to  this  writer,  the  relation  in 
which  possibly  the  three  persons  of  the  one  deity  stand.  Filmer  stopped  short  at 
least  with  Adam.  To  counteract  the  revolting  effect  which  may  have  just  been 
produced,  I  refer  the  reader  to  page  146,  where  he  will  find,  in  a  passage  of 
great  length,  that  the  Greek  at  Marathon  fought  ofify  for  his  countrj',  his  hearth, 
and  his  laws,  while  the  Persian  far  surpassed  him,  because  he  fought  for  his  king 


310 


ON  CIVIL  LIBERTY 


cellor,  the  justice  of  the  peace,  the  coroner,  institutions ;  not 
indeed  the  individuals  who  happen  to  be  invested  with  the 
office,  but  those  systems  of  laws  and  usages  which  they  repre- 
sent at  the  time. 

It  is  likewise  obvious  why  very  old  usages  or  offices  of 
large  influence  are  often  called  institutions.  The  fact  of  their 
being  old  proves  a  degree  of  independent  action  or  existence. 
No  change  of  things  around  them  has  swept  them  away ;  no 
power  has  ventured  to  strike  them  down.  They  appear  to  be 
rooted  in  society  itself,  beyond  the  reach  of  government ;  and 
single  offices  occasionally  are  called  institutions,  by  way  of 
flattery,  because  all  feel  that  a  real  institution  is  in  dignity 
superior  to  a  single  law  or  office,  on  account  of  its  inherent 
principle  of  self-government. 

The  following,  then,  are  necessary  attributes  of  a  complete 
institution,  taking  the  term  in  its  full  modern  adaptation  : 

A  system  or  an  organic  body  of  laws  or  usages  forming  a 
whole  ; 

Of  extensive  operation,  or  producing  widely-spread  effects ; 

Working  within  a  certain  defined  sphere ; 

Of  a  high  degree  of  independent  permanency  ; 

With  an  individual  vitality  and  an  organism,  providing  for 
its  own  independent  action,  and,  frequently,  for  its  own  de- 
velopment or  expansion,  or  with  autonomy ; 

And  with  its  own  officers  or  members,  because  without  these 
it  would  not  be  an  actual  system  of  laws,  but  merely  a  pre- 
script in  abeyance. 


(those  also  who,  according  to  Herodotus,  were  whipped  into  battle  ?),  and  that 
"  a  Christian  eye  will  look  with  far  greater  satisfaction  and  admiration  on  the 
Persians  who  threw  themselves  out  of  the  sinking  vessel  that  by  their  own  death 
they  might  save  their  king,  than  upon  Thermopylae  or  Marathon."  Enough  !  I 
should  not  have  alluded  to  such  extravagances  and  crudities,  were  not  the  book 
a  very  learned  yet  illogical  apology  for  a  doctrine  which  many  may  have  sup- 
posed to  be  dead,  and  did  it  not  occupy,  in  view  of  its  preposterous  theory,  the 
first  place  of  its  class.  Nor  is  it  historically  uninteresting  that  such  a  work  has 
been  written  in  the  middle  of  the  nineteenth  century.  So  much  is  certain,  that 
were  the  English  government  actually  founded  upon  that  hyper-absolutism 
which  the  author  considers  so  Christian,  no  one  would  be  permitted  to  assail  its 
fundamental  principles  with  that  impimity  which  he  now  enjoys. 


AND  SELF-GOVERNMENT.  31I 

The  institution  is  the  opposite  of  subjective  conception, 
individual  disposition,  and  mere  personal  bias.  The  institu- 
tion implies  organic  action.  In  this  lies  not  only  its  capacity 
of  perpetuating  principles  and  of  insuring  continuous  homoge- 
neous and  expansive  action,  but  also  its  great  power,  its  gran- 
deur, its  danger,  and  its  mischief,  according  to  its  original 
character  and  its  inherent  principle.  Christ  imprinted  on  his 
church  the  missionary  character,  and,  from  the  apostles  to  the 
servants  of  the  gospel  who  lately  starved  near  Cape  Horn,  the 
institution  of  the  missionary  ministry  has  been  the  pioneer  and 
handmaid  of  extending  civilization.  But  if  the  institution  is 
intrinsically  bad,  or  contains  vicious  principles,  it  lends  ad- 
ditional and  fearful  power  to  the  evil  element  within  it,  and 
gives  a  proportionate  scope  to  its  calamitous  influence.  If  it 
be  established  in  a  sphere  in  which  the  subjective  ought  to 
prevail,  it  becomes  an  agent  of  ruin  by  making  the  objective 
prevail  more  than  is  desirable,  or  by  making  the  annihilation 
of  individuality  one  of  its  very  objects.  The  gigantic  institu- 
tion of  the  Society  of  Jesus,  and  some  of  the  modern  Trades' 
Unions,  are  impressive  and  amazing  examples. 

Whenever  men  allow  themselves  to  glide  into  the  belief  that 
moral  responsibility  can  be  aught  else  than  individual,  and 
that  responsibility  is  divisible,  provided  many  perform  but  one 
act;  whenever  the  esprit  du  corps  prevails  over  the  moral  con- 
sciousness of  man,  which  is  inseparable  from  his  individuality, 
the  institution  gives  a  vigor  to  that  which  is  unhallowed  and 
unattainable  by  the  individual.  The  institution  is,  like  every 
union  of  men,  subject  to  the  all-pervading,  elementary  law  of 
moral  reduplication,  as  I  have  called  it  on  previous  occasions, 
and  which  consists  in  this,  that  any  number  of  united  indi- 
viduals, moved  by  the  same  impulse,  conviction,  or  desire, 
whether  good  or  bad — whether  scientific,  aesthetic,  or  ethical, 
patriotic  or  servile,  self-sacrificing  or  self-seeking — will  coun- 
tenance and  impel  each  other  to  far  better  or  far  worse  acts, 
and  will  develop  in  each  other  the  powers  for  the  specific  good 
or  evil,  in  a  far  greater  extent,  than  would  have  been  possible 
in  each  separate  individual.     It  is  the  law  which  is  illustrated 


312  ON  CIVIL  LIBERTY 

by  the  excellence  of  whole  periods  in  one  particular  sphere ; 
by  the  rapid  decadence  of  nations  when  once  their  fall  begins; 
by  the  lofty  character  of  some  times,  and  by  the  contaminating 
effect  of  indiscriminate  imprisonment;  by  the  power  of  exam- 
ple ;  by  the  silliness  which  at  times  pervades  whole  classes  or 
communities ;  by  the  sublime,  calm  heroisn  on  board  a  sinking 
man-of-war,  and  at  other  times  by  the  panic  of  large  masses. 
It  is  the  universal  law  of  mutual  countenance  and  excitement. 

If  an  institution  is  founded  on  a  vicious  principle,  or  if  a  bad 
impulse  has  seized  it  for  a  time,  it  will  not  only  add  to  the  evil 
force,  according  to  the  general  law  of  moral  reduplication,  but 
lend  additional  strength  by  the  force  of  its  organization  and 
the  continuity  of  its  action.  Members  of  an  institution  will 
do  that  which,  singly,  they  would  never  have  dared  to  perpe- 
trate. They  will  deny  the  obligation  of  paying  what  is  due  to 
widows  and  orphans,  in  cases  which  would  have  made  them 
look  upon  the  denial  as  disgraceful,  had  they  acted  in  their 
own  individual  capacity.  Thousands  who  have  committed  acts 
of  crying  cruelty  as  members  of  the  Holy  Office  would  not 
have  been  capable  of  committing  them  individually.  The  in- 
stitution in  these  cases  has  the  same  effect  which  all  united 
and  continuous  action  has. 

On  the  other  hand,  institutions  have  been  able,  for  the 
same  reason,  to  resist  iniquitous  inroads,  or  its  members  have 
been  wrought  up  to  a  manly  devotion,  when  the  individual 
would  not,  and,  often  at  least,  could  not,  have  resisted.  In 
almost  all  cases  of  an  invasion  of  rights  by  one  of  the  domestic 
powers,  we  find  that  some  institution  has  formed  the  breakwater 
against  the  rushing  tide  of  power.  There  are  many  instances, 
such  as  the  "  Case  of  the  Bishops"  under  James  II.,  and  the 
rejoicing  of  the  better-disposed  Frenchmen  when  the  court 
of  Paris  declared  itself,  although  in  vain  as  it  turned  out, 
competent  to  judge  of  the  spoliation  which  the  dictator  had 
decreed  against  the  Orleans  family,  that  show  how  instinct- 
ively men  look  toward  institutions  for  support  and  political 
salvation. 

I  have  purposely  restricted  my  remarks  on  the  resisting 


A  AD  SELF-GOVERNMENT.  313 

force  of  institutions  to  cases  of  invasion  by  domestic  powers. 
When  foreign  invaders  trample  upon  rights  and  grind  down 
a  people,  something  different  and  sharper  is  required  to  rouse 
them,  to  electrify  them  into  united  resistance.  Humanity 
itself  must  be  stung ;  an  element  in  man's  very  nature  must 
be  offended,  so  that  the  most  patient  cannot  endure  the 
oppression  any  longer.  We  find,  therefore,  that  innumerable 
popular  risings  against  foreign  despots,  in  antiquity  and  modern 
times,  have  taken  place,  when  the  insolent  oppressor,  having 
gone  all  lengths,  at  last  violates  a  wife  or  a  daughter.  Such 
outrage  comes  home  to  the  most  torpid  heart,  and  will  not  be 
borne  by  the  veriest  slave. 

We  investigate,  here,  the  nature  of  the  institution  in  general. 
Like  everything  possessing  power,  it  may  serve  for  weal  or 
woe,  as  we  have  seen.  Constituted  evil  is  as  much  worse,  as 
constituted  good  is  more  efficaciously  good  than  that  effected 
by  the  individual.  When  we  know  the  essential  nature  of  the 
Institution,  we  shall  be  able  to  judge  when,  and  where,  and 
how  it  may  be  used  beneficially.  An  institution  is  an  arch  : 
but  there  are  arches  that  support  bridges,  and  cathedrals, 
and  hospitals  ;  and  others  that  support  dungeons,  banquet- 
rooms  of  revelry,  torture-chambers,  or  spacious  halls  in  which 
criminal  folly  enacts  a  melancholy  farce  with  all  the  pitiful 
trappings  of  unworthy  submission. 

The  greater  or  less  degree  in  which  the  institutional  spirit 
of  different  nations  is  manifested  furnishes  us  with  a  striking 
characteristic  of  whole  nations.  The  Romans,  the  Nether- 
landers,  and  indeed  all  the  Teutonic  tribes,  until  the  dire 
spirit  of  dis-individualizing  centralization  seized  nearly  all  the 
governments  of  the  European  continent,  were  institutional  na- 
tions. The  English  and  ourselves  are  still  so.  The  Russians 
and  all  the  Sclavonic  nations,  the  Turks  and  the  Mongolian 
tribes,  seem  to  be  remarkably  uninstitutional. 

A  similar  remark  naturally  applies  to  different  species  of 
governments.  Some  do  not  only  result  from  a  decidedly  insti- 
tutional tendency  of  the  people  at  large,  but  they  also  promote 
it,  while  there  is  in  others    an    inherent   antagonism  to  the 


314 


ON  CIVIL   LIBERTY 


institution.  No  absolutism,  whether  that  of  one  or  many, 
brooks  institutions.  Cunning  monarchical  absolutism,  some- 
times, allows  the  forms  of  institutions  to  exist,  in  order  to  use 
them  for  its  own  purpose.  The  reason  why  all  absolutism  is 
hostile  to  living  institutions  is  not  only  because  all  absolute 
rulers  discountenance  opposition,  but  because  there  is  in 
every  despotism  an  ingrained  incompatibility  with  independent 
action  and  self-government,  in  whatsoever  narrow  circle  or 
moderate  degree  it  may  strive  to  maintain  itself  This  is  so 
much  the  case  that  often  despots  of  the  best  intentions  for  the 
welfare  of  the  people  have  been  the  most  destructive  to  the 
remnants  of  former  or  to  the  germs  of  future  institutions,  in 
the  very  proportion  in  which  they  have  been  gifted  with  bril- 
liant talents,  activity,  and  courage.  These  served  them  only 
to  press  forward  more  vigorously  and  more  boldly  in  the 
career  of  all  absolutism,  which  consists  in  the  absorption  of 
individuality  and  institutional  action,  or  in  levelling  everything 
which  does  not  comport  with  a  military  uniformity,  and  with 
sweeping  annihilation  of  diversity. 

As  institutions  may  be  good  or  bad,  so  may  they  be  favor- 
able or  unfavorable  to  liberty.  They  may  indeed  give  to  the 
representative  of  the  institution  great  freedom,  but  only  for 
the  repression  of  general  freedom.  The  viziership  is  an  insti- 
tution all  over  Asia,  and  has  been  so  from  remote  periods,  but 
it  is  an  institution  in  the  spirit  of  despotism,  and  forms  an 
active  part  of  the  pervading  system  of  Asiatic  monarchical 
absolutism.  The  star  chamber  was  an  institution,  and  gave 
much  freedom  of  action  to  its  members,  yet  the  patriots  under 
the  Stuarts  made  it  their  first  business  to  break  down  this 
preposterous  institution.  When  in  1660  the  Danes  made  their 
king  hereditary  and  absolute,  binding  him  by  the  only  oath 
that  he  should  never  allow  his  or  his  successors'  power  to  be 
restricted,  the  Danish  crown  became  undoubtedly  a  new  insti- 
tution, but  assuredly  not  propitious  to  liberty.  Of  all  the 
Hellenic  tribes  the  Spartans  were  probably  the  most  institu- 
tional, but  they  were  communists,  and  communism  is  hostile  tc 
liberty.     They  dis-individualized  the  citizens,  and,  as  a  matter 


A  XD  SELF-  G  O  VERy.UEXT. 


315 


of  course,  extinguished  in  the  same  degree  individual  h'berty, 
development,  and  progress.  A  state  in  which  a  citizen  could 
be  punished  because  he  had  added  one  more  to  the  commonly 
adopted  number  of  lute-strings,  cannot  be  allowed  to  have 
been  favorable  to  liberty. 

Many  of  those  very  attributes  of  the  institution  proper, 
which  make  it  so  valuable  in  the  service  of  liberty,  constitute 
its  inconvenience  and  danger  when  the  institution  is  used 
against  it.  It  is  a  bulwark,  and  may  protect  the  enemy  of 
liberty'.  It  is  like  the  press.  Modern  liberty  or  civilization 
cannot  dispense  with  it,  yet  it  may  be  used  as  its  keenest 
enemy. 


jl6  ON  CIVIL  LIBERTY 


CHAPTER    XXVI. 

THE    INSTITUTION,    CONTINUED. INSTITUTIONAL    LIBERTY. IN- 
STITUTIONAL   LOCAL   SELF-GOVERNMENT. 

Civilization,  so  closely  connected  with  what  we  love  in 
modern  liberty,  as  well  as  progress  and  security,  themselves 
ingredients  of  civil  liberty,  stands  in  need  of  stability  and 
continuity,  and  these  cannot  be  secured  without  institutions. 
This  is  the  reason  why  the  historian,  when  speaking  of  such 
organizers  or  refounders  of  their  nations  as  Charlemagne, 
Alfred,  Numa,  Pelayo,  knows  of  no  higher  name  to  give  them 
than  that  of  institutors. 

The  force  of  the  institution  in  imparting  stability  and  giving 
new  power  to  what  otherwise  must  have  swiftly  passed  away, 
has  been  illustrated  in  our  own  times  in  Mormonism.  Every 
observer  who  has  gravely  investigated  this  repulsive  fraud  will 
agree  that  as  for  its  pretensions  and  doctrines  it  must  have 
passed  as  it  came,  had  it  not  been  for  the  remarkable  charac- 
ter which  Joseph  Smith  possessed  as  an  institutor.'  Thrice 
blessed  is  a  noble  idea,  perpetuated  in  an  active  institution,  as 
charity  in  a  hotel-dieu  ;  thrice  cursed,  a  wicked  idea  embodied 
in  an  institution. 

The  title  of  institutor  is  coveted  even  by  those  who  repre- 
sent ideas  the  very  opposite  to  institutions. 

Louis  Napoleon  Bonaparte,  when  he  inaugurated  his  gov- 


»  The  great  ability  of  this  man  seems  to  be  peculiarly  exhibited  in  his  mixture 
of  truth  and  arrant  falsehood,  his  uncompromising  boldness  and  insolence,  and 
his  organizing  instituting  mind.  Two  men  have  met  almost  simultaneously  with 
great  success  in  our  own  times — Joseph  Smith  and  Louis  Napoleon.  Of  the 
two,  the  first  seems  the  more  clever.  What  he  performed  he  did  against  all 
probability  of  success,  without  any  assistance  from  tradition  or  prestige. 


AND  SELF-GOVERNMENT.  317 

ernment,  dwelt  on  the  "  institutions"  he  had  established,'  with 
pride,  or  a  consciousness  that  the  world  prizes  the  founding 
of  good  institutions  as  the  greatest  work  of  a  statesman  and 
a  ruler. 

Institutions  may  not  have  been  viciously  conceived,  or  have 
grown  out  of  a  state  of  violence  or  crime,  and  yet  they  may 
have  become  injurious  in  the  course  of  time,  as  incompatible 
with  the  pervading  spirit  of  the  age,  or  they  may  have  be- 
come hollow,  and  in  this  latter  case  they  are  almost  sure  to 
be  injurious.  Hollow  institutions  in  the  state  are  much  like 
empty  boxes  in  an  ill-managed  house.  They  are  sure  to  be 
filled  with  litter  and  rubbish,  and  to  become  nuisances.  But 
great  wisdom  and  caution  are  necessary  to  decide  whether  an 
institution  ought  to  be  amputated  or  not,  because  it  is  a  notable 
truth  in  politics  that  many  important  institutions  and  laws  are 
chiefly  efficient  as  preventives,  not  as  positive  agents.  It  is 
not  sufficient,  therefore,  that  at  a  glance  we  do  not  discover 


*  He  meant,  of  course,  the  senate,  legislative  corps,  and  the  council  of  state. 
Why  he  calls  these  ne7u  institutions  we  cannot  see,  but  he  evidently  wished  to 
indicate  his  own  belief,  or  desired  that  others  should  believe,  in  their  perma- 
nency, as  well  perhaps  as  in  their  own  independent  action.  To  those,  however, 
who  consider  them  as  nothing  more  than  the  pared  and  curtailed  remnants  of 
former  institutions,  who  do  not  see  that  they  can  enjoy  any  independent  action 
of  their  own,  and  are  aware  that  their  very  existence  depends  upon  the  mere 
forbearance  of  the  executive;  who  remember  their  origin  by  a  mere  decree  of  a 
dictator  bound  by  no  superior  law, — to  those  who  know  with  what  studied  and 
habitual  sneer  "parliamentary  governments"  are  spoken  of  by  the  ruling  party 
in  France,  all  these  establishments  appear  in  principle  no  more  as  real  institutions 
than  a  tent  on  a  stage.  The  "  constitution"  of  the  present  empire  (Napoleon  I. 
always  spoke  of  les  constitutions  de  V empire)  is  a  close  copy  of  the  organic  laws 
of  the  first  empire.  Now,  few  of  my  readers,  probably,  are  aware  that  the  very 
name  of  senatus-consultum,  which  played  so  important  a  part  in  the  first  empire, 
and  by  which  the  most  violent  fundamental  changes  were  effected,  was  literally 
smuggled  in  by  Napoleon  I.  He  did  so  on  occasion  of  the  conspiracy  of  Ceracchi 
and  others,  when  the  council  of  state  resolved  that  no  law  should  be  demanded, 
because  that  "  would  lead  to  discussion."  The  list  of  condemned  was  passed 
by  the  council  of  state,  upon  a  report  of  the  police,  not  even  signed,  and  the 
senate  adopted  and  decreed  it,  as  a  senattts-constiltum.  Memoirs  of  Miot  de 
Melito,  (himself  a  counsellor  of  state,)  vol.  i.  page  360  and  sequ.  It  hardly 
deserves  mention  here,  that  Napoleon  adopted  the  term  from  the  Roman  empire, 
which  was  his  political  beau-ideal,  as  he  did  many  other  terms  and  symbols. 


3i8  ON  CIVIL  LIBERTY 

any  palpable  good  produced  by  the  institution,  to  justify  us  in 
destroying  it.  Antiquity  is  prima  facie  evidence  in  favor  of 
an  institution,'  and  must  not  rashly  be  confounded  with  obso- 
leteness ;  but  antiquity  is  certainly  no  proof  against  positive 
and  grounded  arguments.  On  the  other  hand,  hollow  institu- 
tions have  frequently  the  serious  inconvenience  of  deceiving 
and  changing  the  proper  venue,  as  lawyers  would  express  it. 
The  form  of  a  representative  government,  without  the  spirit, 
true  principles,  and  sincere  guarantees  of  self-government  in 
that  body,  or  without  being  founded  upon  a  candid  and  real 
representation,  is  worse  than  a  government  without  these 
forms,  because  it  eases  the  executive  of  the  responsibility 
which  without  that  hollow  form  would  visibly  rest  on  it  alone.' 
But  here,  again,  it  is  necessary  to  observe  that  an  institution 
may  for  a  time  become  a  mere  form,  and  yet  that  very  form 


'  I  am  aware  that  many  persons  believe  nowadays  so  little  in  this  truth  that 
not  only  does  antiquity  of  itself  appear  to  them  as  a  proof  of  deficiency,  but  they 
turn  their  face  from  the  whole  Past,  as  something  to  be  shunned,  thus  forgetting 
the  continuity  of  society,  progress,  and  civilization.  Mr.  Guizot,  in  his  lectures 
on  the  History  of  Representative  Governments,  delivered  in  Paris,  1820,  found 
it  necessary  to  warn  his  hearers  against  this  horror  of  the  Past.  The  reader  will 
find  remarks  on  the  impossibility  of  "  beginning  entirely  anew,"  in  my  Political 
Ethics. 

«  Count  Miot  relates  that  when  Napoleon,  as  consul,  desired  to  change  the 
entire  character  of  the  house  of  representatives,  in  order  to  bring  it  under  the 
exclusive  control  of  the  executive,  but  hesitated  to  make  an  organic  change  by 
mere  violence,  Talleyrand  at  last  suggested  that  the  other  assembly  had  no 
business  assigned  to  it;  why  should  it  not  be  made  to  sanction  the  measure? 
The  histoiy  of  the  whole  consulate,  and  of  the  early  period  of  the  empire,  is  a 
striking  and  continuous  illustration  of  the  assistance  which  a  despot  derives  from 
mere  forms  of  liberty  without  the  reality  of  freedom.  It  would  seem  that  Napo- 
leon I.  established  certain  forms,  in  conquered  countries,  for  the  very  purpose  of 
assigning  the  appearance  of  responsibility  to  certain  bodies  of  the  state,  while  he 
left  the  government  absolute.  It  is  difficult  otherwise  to  explain  the  constitution 
which  he  decreed  for  Naples,  (page  359,  vol.  ii.  of  Memoirs  of  Count  Miot  de 
Melito,)  according  to  which  *'  the  national  representation"  was  to  consist  of  one 
chamber  divided  into  five  sections,  namely :  the  clergy,  nobility,  proprietors, 
savans,  and  traders;  the  clergy,  nobility,  and  savans  holding  their  places  for  life; 
the  others  removable  at  pleasure  by  the  government.  The  Roman  senate,  when 
it  had  become  the  recording  body  of  the  imperial  decrees,  gave  much  support  to 
the  emperors,  by  its  appearance  of  an  ancient  institution. 


AND  SELF-GOVERNMENT.  319 

may  soon  be  animated  again  by  a  proper  spirit.  Parliament 
under  Henry  VIII.  had  become  a  subservient  tool,  highly 
noxious  because  it  formally  sanctioned  many  atrocious  meas- 
ures of  the  king.  Yet  it  was  that  same  parliament  which 
rose  to  action  and  importance  within  fifty  years,  and  within  a 
century  and  a  half  became  the  virtual  seat  of  government  and 
supreme  power  in  the  state.  There  is  hardly  a  portion  of  the 
penal  trial  which  has  not  at  times  and  for  an  entire  period 
been  abused ;  yet  the  existence  of  this  very  trial,  intended 
to  rest  on  the  principle  of  independence,  became  in  a  better 
period  the  starting-point  of  a  new  order  of  thjngs. 

We  must  also  mention  the  fact  that  there  are  perennial  and 
deciduous  institutions,  or  institutions  avowedly  fit  only  for  a 
preparatory  state  of  civilization.  Their  office  is  limited  in 
duration,  like  that  of  the  deciduous  teeth,  which  must  be  drawn 
if  they  do  not  drop  of  themselves,  or  if  they  resist  too  obsti- 
nately their  perennial  substitutes. 

We  may  here  close  our  general  remarks  on  institutions,  and, 
now,  investigate  in  what  the  force  of  the  institution  consists, 
when  wisely  taken  into  the  service  of  liberty,  and  inquire  into 
the  characteristics  of  self-government  in  particular. 

By  institutional  self-government  is  meant  that  popular  gov- 
ernment which  consists  in  a  great  organism  of  institutions 
or  a  union  of  harmonizing  systems  of  laws  instinct  with  self- 
government.  It  is  essentially  of  a  co-operative  character,  and 
thus  the  opposite  to  centralism.  It  is  articulated  liberty,  and 
thus  the  opposite  to  an  inarticulated  government  of  the  ma- 
jority. It  is  of  an  inter-guaranteeing,  and,  consequently,  inter- 
limiting  character,  and  in  this  aspect  the  negation  of  absolutism. 
It  is  of  a  self-evolving  and  genetic  nature,  and  thus  is  contra- 
distinguished from  governments  founded  on  extra-popular 
principles,  such  as  divine  right.  Finally,  institutional  self- 
government  is,  in  the  opinion  of  our  race,  and  according  to 
our  experience,  the  only  practical  self-government,  or  self- 
government  carried  out  in  the  realities  of  life,  and  is  thus  the 
opposite  of  a  vague  or  theoretical  liberty,  which  proclaims 
abstractions,  but,  in  reality,  cannot  disentangle  itself  from  the 


320 


ON  CIVIL  LIBERTY 


despotism  of  one  part  over  another,  however  permanent  or 
changing  the  ruHng  part  may  be. 

Institutional  self-government  is  the  political  embodiment  of 
self-reliance  and  mutual  acknowledgment  of  self-rule.  It  is 
in  this  view  the  political  realization  of  equality. 

Institutional  self-government  is  the  only  self-government 
which  makes  it  possible  to  unite  JT/T^government  and  self- 
govcrnment. 

According  to  the  Anglican  view,  institutional  self-govern- 
ment consists  in  the  fact  that  all  the  elementary  parts  of  the 
government,  as  well  as  the  highest  and  most  powerful  branches, 
consist  in  real  institutions,  with  all  the  attributes  which  have 
been  ascribed  to  an  institution  in  the  highest  sense  of  the  term. 
It  consists,  farther,  in  the  unstinted  freedom  and  fair  protection 
which  are  granted  to  institutions  of  all  sorts,  commercial, 
religious,  cultural,  scientific,  charitable,  and  industrial,  to  ger- 
minate and  to  grow — provided  they  are  moral  and  do  not 
invade  the  equal  rights  of  others.  It  receives  its  aliment  from 
a  pervading  spirit  of  self-reliance  and  self-respect — the  real 
afflatus  of  liberty. 

It  does  not  only  require  that  the  main  functions  of  the 
government — the  legislative,  the  judicial,  and  the  executive — 
be  clearly  divided,  but  also  that  the  legislature  and  the  judi- 
ciary be  bona  fide  institutions.  The  first  French  constituent 
assembly  pronounced  the  separation  of  the  three  powers,  and 
was  obliged  to  do  so,  since  it  intended  to  demolish  the  abso- 
lutism which  had  grown  up  under  the  Bourbons ;  but  so  long 
as  there  existed  an  absolute  power,  no  matter  of  what  name, 
that  could  dictate,  liberty  was  not  yet  obtained.  Indeed,  it 
may  be  said  that  an  efficient  division  of  power  cannot  exist, 
unless  the  legislature  and  the  judiciary  form  real  institutions, 
in  our  sense  of  the  term. 

These  institutions,  again,  consist  of  many  minor  institutions, 
as  an  organism  consists  of  many  minor  ones.  Our  congress 
is  a  real  institution,  but  its  component  parts,  the  senate  and 
house  of  representatives,  are  its  constituent  institutions,  and 
the  whole  is  in  close  connection  with  other  institutions,  for 


A ND  SELF-  G  O  J  'ERNMENT. 


321 


instance  the  state  legislatures,  or  depends  upon  others  such  as 
the  common  law. 

Yet  the  self-government  of  our  country  or  of  England  would 
be  considered  by  us  little  more  than  oil  floating  on  the  surface 
of  the  water,  did  it  consist  only  in  a  congress  and  state  legis- 
latures with  us,  and  in  a  parliament  in  England.  Self-govern- 
ment, to  be  of  a  penetrative  character,  requires  the  institutional 
self-government  of  the  county  or  district;  it  requires  that 
everything  which,  without  general  inconvenience,  can  be  left 
to  the  circle  to  which  it  belongs,  be  thus  left  to  its  own  man- 
agement; it  consists  in  the  presenting  grand  jury,  in  the  petty 
jury,  in  the  fact  that  much  which  is  called  on  the  European 
continent  the  administrative  branch  be  left  to  the  people.  It 
requires,  in  one  word,  all  the  local  appliances  of  government 
which  are  termed  local  self-government;'  and  Niebuhr  says 
that  British  liberty  depends  at  least  as  much  on  these  as  on 
parliament,  and  in  contradistinction  to  them  he  calls  the 
governments  of  the  continent  Staats-Regierungen,  (state  gov- 
ernments, meaning  governments  in  which  all  detail  is  directed 
by  the  general  and  supreme  power.)  ^ 


'  T.  Toulmin  Smith's  Local  Self-government  and  Centralization,  etc.,  Lon 
don,  1 85 1. 

A  work  which  many  of  my  readers  will  peruse  with  interest  and  instruction  is 
Ferdinand  Bechard's  Lois  Municipales  des  R^publiques  de  la  Suisse  et  des 
Etats-Unis,  Paris,  1852.  Mr.  Bechard  is  also  the  author  of  a  Traits  de  I'Admi- 
nistration  Interieure  de  la  France — a  work  which  must  be  welcome  to  every  in- 
quiring citizen,  because  it  pictures  the  details  of  French  centralization,  the  most 
consistently  carried-out  centralization  in  existence. 

Mr.  Bechard  uses  repeatedly  in  his  French  work  the  English  term  Self-govern- 
irent. 

«  A  German  work,  the  title  of  which  is  :  An  Account  of  the  Internal  Adminis- 
tration of  Great  Britain,  by  Baron  von  Vincke,  edited  by  B.  G.  Niebuhr,  Berlin, 
1815.  Niebuhr,  who  had  spent  a  portion  of  his  early  manhood  in  England,  pub- 
lished, and  probably  modelled  in  a  great  measure,  this  work  in  order  to  influence, 
if  possible,  the  Prussian  government  to  reorganize  the  state  after  the  expulsion  of 
the  French,  and  to  reclaim  that  kingdom  from  the  centralization  it  had  adopted 
in  many  respects  from  the  invaders  of  Germany.  Niebuhr  was  a  follower  and 
great  admirer  of  Baron  von  Stein,  who,  when  minister  of  Prussia,  had  given  to 
the  cities  some  degree  of  self-government  by  his  Stadte-Ordnung — causing  not 

21 


322 


ON  CIVIL  LIBERTY 


It  must  be  in  view  of  this  local  self-government,  combined 
with  parliamentary  freedom,  that  Sir  Edward  Coke  said  of  the 
Justice  of  the  Peace :  "  It  is  such  a  form  of  subordinate 
government  for  the  tranquillity  and  quiet  of  the  realm  as  no 
part  of  the  Christian  world  hath  the  like,  if  the  same  be  duly 
executed."' 

Anglican  self-government  requires  that  every  institution  of 
local  self-government  shall  have  the  right  to  pass  such  by- 
laws as  it  finds  necessary  for  its  own  government,  without 
obtaining  the  consent  of  any  superior  power,  even  that  of  the 
crown  or  parliament,  and  that  of  course  such  by-laws  shall 
stand  good  in  the  courts  of  law,  and  shall  be  as  binding  upon 
every  one  concerned  as  any  statute  or  law.  I  believe  that  it 
is  in  the  Anglican  system  of  liberty  alone  that  by-laws  are 
enacted  and  have  full  force  without  consent  of  superior  power^ 
There  are  in  other  countries  exceptions,  but  they  are  rare  in- 
deed, and  very  limited  in  power,  while  the  by-law  is  the  rule 
in  our  system.  The  whole  subject  of  the  by-law  is  character- 
istic and  important,  and  stands  out  like  the  comprehensive  and 
peculiar  doctrine  of  the  Anglican  warrant.  The  character  of 
self-government  is  moreover  manifested  by  the  fact  that  the 
right  of  making  by-laws  is  not  derived  from  any  grant  of 
superior  power,  but  has  been  ever  considered  in  the  English 
polity  as  inherent  in  the  local  community — a  natural  right  of 
freemen.  Coke  says,  with  reference  to  these  laws  and  their 
force  :  "  Of  more  force  is  the  agreement  of  the  folk  and  people 


a  little  umbrage  to  Napoleon.  Niebuhr  desired  to  give  increased  life  to  the 
principles  contained  in  the  Cities'  Charter,  when  he  published  the  work  I  have 
mentioned. 

'  Coke's  Institutes,  part  lO,  ch.  xxi.,  Justices  of  the  Peace.  The  Earl  of  Strat- 
ford, who,  like  his  royal  master,  died  so  well,  after,  politically  speaking,  having 
lived  so  ill,  bade  his  brother,  on  the  scaffold,  to  take  this  among  other  messages 
to  his  eldest  son  :  "  Wish  him  to  content  himself  to  be  a  servant  to  his  country, 
as  a  justice  of  the  peace  in  his  county,  not  aiming  at  higher  preferment."  May 
12,  1641.  Kushworth,  (who  was  on  the  scafifold,)  vol.  viii.  p.  760.  George 
Washington,  after  having  aided  in  founding  a  great  commonwealth,  and  after 
having  been  twice  its  chief  magistrate,  was  a  justice  of  the  peace  in  his  county, 
in  which  he  was  imitated  by  John  Adams,  and,  perhaps,  by  other  ex-presidents. 


AND  SELF-GOVERNMENT.  323 

than  the  grant  of  the  klng;"^  and  in  another  place  he  says  : 
"  The  inhabitants  of  a  town,  without  any  custom,  may  make 
ordinances  or  by-hiws  for  any  such  thing  which  is  for  the 
general  good  of  the  public,"  unless  indeed  it  be  pretended  by 
any  such  by-law  to  abridge  the  general  liberty  of  the  people, 
their  inherent  birthright,  assured  to  all  by  the  common  law 
of  the  whole  land,  and  which  that  common  law,  in  its  jealous 
regard  for  liberty,  does  not  allow  to  be  abrogated  or  lessened 
even  by  their  own  consent — much  less,  therefore,  by  the  con- 
sent of  their  delegates  in  parliament."  3 

It  may  be  added  that  by-law  does  not  mean,  as  many  suppose, 
additional  law,  law  by  the  side  of  another  or  complementary, 
but  it  means  law  of  the  place  or  community,  law  of  the  by  or 
pye — that  is,  of  the  collection  of  dwellers,  or  of  the  settlement 
as  we,  in  America,  perhaps  would  naturally  express  it.'* 


'  8  Reports,  p.  125.  25  Reports,  p.  63.  3  Ibid.,  p.  64. 

*■  See  Smith's  Local  Self-government,  p.  230.  The  quotations  from  Coke  tc 
which  the  three  last  notes  refer  are  likewise  in  Smith's  work,  which  L  recommend 
to  every  reader. 

By,  in  by-law,  is  the  same  syllable  with  which  the  names  of  many  English 
places  end,  such  as  Derby,  Whitby,  and  is  etymologically  the  same  with  the  Ger- 
man Bauen  (to  build,  to  settle,  to  cultivate,)  which  is  of  the  same  root  with  the 
Gothic  Bua  and  Boo,  and  especially  the  frequentative  Bygga,  (zdijicare.  See 
Adelung,  ad  verbum  Bauen.  It  is  a  word  which  runs  through  all  the  Teutonic 
languages,  ancient  and  modern. 

Gradually,  indeed,  bye-laws  came  to  signify  laws  for  a  limited  circle,  a  small 
society,  laws  which  any  set  of  men  have  the  right  to  pass  for  themselves  within 
and  under  the  superior  law,  charter,  etc.,  which  constitutes  them  into  a  society, 
and  thus  it  happened  that  bye-law  was  changed  into  by-law,  as  we  have  by-ways, 
roads  by  the  side  of  others.  It  cannot  be  denied  that  by-law  at  present  is  used  in 
the  sense  of  law  passed  by  the  side,  as  it  were,  of  another  main  law.  Very  few 
persons  know  of  the  origin,  and  the  present  sense  of  by-law  is  doubtless  that  of 
collateral,  expletive,  or  subordinate  law.  Such  doul^le  derivations  are  not  un- 
common in  our  language.  The  scholar  is  probably  reminded,  by  this  note,  of 
the  term  God,  which  we  Christians  derive  {torn,  good,  and  a  better,  holier  deriva- 
tion, as  to  the  sense  of  the  word,  we  cannot  give  to  it ;  yet  the  historical  deriva- 
tion, the  verbal  etymology,  if  I  might  so  say,  is  an  entirely  different  one.  See 
Jacob  Grimm's  German  Mythology,  ad  verlnim  Gott.  The  starting-point  of 
adoration  is,  with  all  tribes,  dread,  acknowledgment  of  superior  power;  then 
follows  acknowledgment  of  wisdom,  and  last  of  all  acknowledgment  of  goodness, 
purity,  holiness. 


324 


ON  CIVIL  LIBERTY 


CHAPTER    XXVII. 

EFFECTS   AND    USES    OF    INSTITUTIONAL    SELF-GOVERNMENT. 

In  order  fully  to  appreciate  institutional  self-government, 
and  not  unconsciously  to  enjoy  its  blessings,  as  most  of  us 
enjoy  the  breath  of  life  without  reflecting  on  the  organ  of 
respiration  and  the  atmosphere  we  inhale,  it  is  necessary  to 
present  to  our  minds  clearly  what  effects  it  produces  on  the 
individual,  on  society,  and  on  whole  periods,  and  how  it  acts 
far  beyond  the  limits  of  the  countty  where  it  prevails. 

The  advantages  of  institutional  liberty  and  organized  self- 
government,  diffused  over  a  whole  country  or  state,  and  pene- 
trating with  its  quickening  power  all  the  branches  of  govern- 
ment, may  be  briefly  summed  up  in  the  following  way  : 

Institutional  self-government  trains  the  mind  and  nourishes 
the  character  for  a  dependence  upon  law  and  a  habit  of  liberty, 
as  well  as  of  a  law-abiding  acknowledgment  of  authority.  It 
educates  for  freedom.  It  cultivates  civil  dignity  in  all  the 
partakers,  and  teaches  to  respect  the  rights  of  others.  It 
has  thus  a  gentlemanly  character.  It  brings  home  palpable 
liberty  to  all,  and  gives  a  consciousness  of  freedom,  rights,  and 
corresponding  obligations  such  as  no  other  system  does.  It 
is  the  only  self-government  which  is  a  real  government  of  self, 
as  well  as  by  self,  and  indeed  is  the  only  real  self-government, 
of  which  all  other  governments  assuming  the  name  of  self- 
government  are  but  semblances,  because  they  are  at  most  the 
unrestricted  rule  of  accidentally  dominating  parties,  which  do 
not  even  necessarily  consist  of  the  majorities.  For  it  is  a 
truth  that  what  is  called  a  majority  in  uninstitutional  coun- 
tries, which  struggle  nevertheless  for  liberty,  is  generall}-  a 
minority,  and  often  even  a  small  minority. 


AND   SELF-GOVERNMENT.  325 

Institutional  self-government  incarnates,  if  the  expression 
may  pass,  the  idea  of  a  free  country,  and  makes  it  palpable,  as 
the  jury  is  nobly  called  the  country  for  the  prisoner.  It  seems 
that  as  long  as  institutions  exist  in  full  vigor,  and  no  actual 
revolution  takes  place,  that  odious  and  very  stale  part  of  a 
successful  general  who  uses  the  wreaths  he  has  gained  abroad, 
as  a  means  of  stifling  liberty  at  home,  is  unknown.  Rome  had 
her  Syllas  and  Marius,  with  their  long  line  of  successors,  only 
from  the  time  when  the  institutional  character  of  Rome  had 
begun  to  fade.  A  French  writer  of  ability'  mentions  as  a  fact 
worthy  of  note,  that  the  Duke  of  Wellington  never  carried  his 
ambition  higher  than  that  of  a  distinguished  subject,  although 
Napoleon  expected  the  contrary;  and  General  Scott,  in  his 
account  of  the  offer  which  was  made  to  him  in  Mexico,  to  take 
the  reins  of  that  country  into  his  own  hands  and  rule  it  with 
his  army,  twice  mentions  the  love  of  his  country's  institutions, 
which  induced  him  to  decline  a  ruler's  chaplet.^ 


'  Mr.  Lemoisne,  Wellington  from  a  French  Point  of  View. 

'  General  Scott  has  given  an  account  of  this  affair  in  some  remarks  he  made  at 
a  public  dinner  at  Sandusky,  in  the  year  1852.  The  generals  of  most  couutries 
would  probably  charge  the  victorious  general  with  niaiserie,  for  declining 
so  tempting  an  offer.  We  delight  in  the  dutiful  and  plain  citizen  who  did 
not  hesitate,  and,  as  the  occurrence  possesses  historical  importance,  the  entire 
statement  of  the  genera!  is  here  given.  I  have  it  in  my  power  to  say,  from  the 
best  information,  that  the  following  account  is  "  substantially  correct,"  and  ns 
authentic  as  reports  of  speeches  can  well  be  made  : 

"  My  friend,"  said  General  Scott,  "  has  adverted  to  the  proposition  seen  float- 
ing about  in  the  newspapers.  I  have  nowhere  seen  it  correctly  stated  that  an 
offer  was  made  to  me  to  remain  in  that  country  and  govern  it.  The  impression 
which  generally  prevails,  that  the  proposition  emanated  from  congress,  is  an 
erroneous  one.  ffhe  overture  was  made  to  me  privately,  by  men  in  and  out  of 
office,  of  great  influence — five  of  whom,  of  enormous  wealth,  offered  to  place  the 
bonus  of  one  million  of  dollars  (mentioned  below)  to  my  credit  in  any  bank  I 
might  name,  either  in  New  York  or  London.  On  taldng  possession  of  the  city 
of  Mexico,  our  system  of  government  and  police  was  established,  which,  as  the 
inhabitants  themselves  confessed,  gave  security — for  the  first  time  perfect  and 
absolute  security — to  person  and  property.  About  two-fifths  of  all  the  branches 
of  government,  including  nearly  a  majority  of  the  members  of  congress  and  the 
executive,  were  quite  desirous  of  having  that  country  annexed  to  ours.  They 
knew  that,  upon  the  ratification  of  the  treaty  of  peace,  nineteen  out  of  twenty  of 


326 


ON  CIVIL  LIBERTY: 


Institutional  self-government  is  of  great  importance  regard- 
ing the  obedience  of  the  citizen. 

Obedience  is  one  of  the  elements  of  all  society,  and  conse- 
quently of  the  state.  Without  it  political  society  cannot  hold 
together.  This  is  plain  to  every  one.  Yet  there  exists  this 
great  distinction,  that  there  may  be  obedience  demanded  on 
the  sole  ground  of  authority ;  such  is  the  obedience  expected 
by  the  parent.  The  authority  of  the  parent  comes  from  a 
source  not  within  the  circle  of  the  obeyers.     And  there  may 


the  persons  belonging  to  the  American  army  would  stand  disbanded,  and  would 
be  absolutely  free  from  all  obligations  to  remain  in  the  army  another  moment.  It 
was  entirely  true  of  all  the  new  regiments  called  regulars,  of  all  the  volunteers,  and 
eight  out  of  ten  of  the  rank  and  file  of  the  old  regiments.  Thirty-three  and  a  third 
per  cent,  were  to  be  added  to  the  pay  of  the  American  officers  and  men  retained 
as  the  nucleus  of  the  Mexican  army.  When  the  war  was  over,  the  government 
overwhelmed  me  with  reinforcements,  after  there  was  no  possibility  of  fighting 
another  battle.  When  the  war  commenced,  we  had  but  one-fourth  of  the  force 
which  we  needed.  The  Mexicans  knew  that  the  men  in  my  army  would  be 
entitled  to  their  discharge.  They  supposed,  if  they  could  obtain  my  services,  I 
would  retain  these  twelve  or  fifteen  thousand  men,  and  that  I  could  easily  obtain 
one  hundred  thousand  men  from  home.  The  hope  was,  that  it  would  immediately 
cause  annexation.  They  offered  nie  one  million  of  dollars  as  a  bonus,  with  a 
salary  of  ^250,000  per  annum,  and  five  responsible  individuals  to  become  security. 
They  expected  that  annexation  would  be  brought  about  in  a  few  years,  or,  if  not, 
that  I  could  organize  the  finances  and  straighten  the  complex  affairs  of  that  gov- 
ernment. It  was  understood  that  nearly  a  majority  of  congress  was  in  favor  of 
annexation,  and  that  it  was  only  necessary  to  publish  a  pronunciamento  to  secure 
the  object.  We  possessed  all  the  fortresses,  all  the  arms  of  the  country,  their 
cannon  foundries  and  powder  manufactories,  and  had  possession  of  their  ports 
of  entry,  and  might  easily  have  held  them  in  our  possession  if  this  arrangement 
liad  gone  into  effect.  A  published  pronunciamento  would  have  brought  congress 
right  over  to  us,  and,  with  these  fifteen  thousand  Americans  holding  the  fortresses 
of  the  country,  all  Mexico  could  not  have  disturbed  us.  We  might  have  been 
there  to  this  day,  if  it  had  been  necessary.  I  loved  my  distant  home.  I  was  not 
in  favor  of  the  annexation  of  Mexico  to  my  own  country.  Mexico  has  about 
eight  millions  of  inhabitants,  and  out  of  these  eight  millions  there  are  not  more 
than  one  million  who  are  of  pure  European  blood.  The  Indians  and  mixed 
races  constitute  about  seven  millions.  They  are  exceedingly  inferior  to  our  own. 
A.S  a  lover  of  my  country,  I  was  opposed  to  mixing  up  that  race  with  our  own. 
This  was  the  first  objection,  on  my  part,  to  this  proposition.  May  I  plead  some 
l>ttle  love  of  home,  which  gave  me  the  preference  for  the  soil  of  my  own  country 
aid  its  institutions?  I  came  back  to  die  under  those  institutions,  and  here  I  a««i.. 
1  b'  iieve  I  have  no  more  to  add  in  reply." 


AND  SELF-GOVERNMENT.  327 

be  obedience  which  has  its  very  source  within  the  circle  of  the 
obeyers.  Such  is  the  source  of  obedience  due  to  authority  in 
that  society  the  component  members  of  which  live  in  jural 
relations — in  one  word,  in  the  state.  The  freeman  obeys,  not 
because  the  government  exists  before  the  people  and  makes 
them,  but  because  man  is  a  being  destined  to  live  in  a  political 
state — because  he  must  have  laws  and  a  government.  It  is 
his  privilege,  and  distinguishes  him  from  the  brute  creation. 
Yet,  the  government  existing  as  a  consequence  of  the  jural 
nature  of  society  and  of  man,  it  is  unworthy  of  a  freeman  to 
obey  any  individual  as  individual,  to  follow  his  commands 
merely  because  issued  by  him,  while  the  citizen  of  a  free 
country  acknowledges  it  as  a  prerogative  to  obey  laws. 

The  obedience  of  a  loyal  free  citizen  is  an  act  of  self-direct- 
ing compliance  with  a  rule  of  action;  and  it  becomes  a  triumph 
of  reason  and  freedom  when  self-directing  obedience  is  thus 
paid  to  laws  which  tlie  obeyer  considers  erroneous,  yet  knows 
to  be  the  laws  of  the  land,  rules  of  action  legitimately  pre- 
scribed by  a  body  of  which  he  forms  a  constituent  part.  This 
noble  attribute  of  man  is  never  politically  developed  except 
by  institutions.  To  obey  institutions  of  self-government  has 
nothing  galling  in  it  on  the  ground  of  submission.  We  do  not 
obey  a  person  whom  as  individual  we  know  to  be  no  more  than 
ourselves,  but  we  obey  the  institution  of  which  we  know  our- 
selves to  be  as  integral  a  part  as  the  superior,  clothed  with 
authority.  The  religious  duty  of  obeying  for  conscience'  sake 
is  not  excluded  from  this  obedience.  On  the  contrary,  it  forms 
an  important  element.  The  term  "law-abiding  people"  could 
never  have  become  so  favorite  an  expression  with  us,  and  would 
not  be  inscribed  even  on  the  banners  of  some  who  defy  the  law, 
were  we  not  an  institutional  people  under  the  authority  of 
institutional  self-government. 

Rulers  over  thirty  millions  of  people,  like  our  presidents, 
could  not  be  easily  changed,  without  shock  or  convulsion, 
were  not  the  thirty  millions  trained  by  institutional  self-gov- 
ernment, were  not  the  ousted  minority  conscious  that,  in  the 
spontaneous  act  of  submitting,  they  obey  an  institution  of 


328 


ON  CIVIL    LIBERTY 


which  they  form  as  important  a  portion  as  the  ruling  party, 
and  did  not  their  own  obedience  foreshadow  the  obedience 
which  the  others  must  yield  when  their  turn  comes.  The 
"principle  of  authority"  has  become  for  the  time  being  as 
popular,  at  least  as  often-repeated,  a  phrase,  in  France,  as 
"  abiding  by  the  law"  is  with  us.  Pamphlets  are  written  on  it, 
the  journals  descant  on  it.  If  the  object  of  these  writings  is  to 
prove  that  there  must  be  authority  where  there  is  society,  it 
would  prove  that  the  writers  must  consider  the  opinion  of  some 
communists,  that  all  government  Is  to  be  done  away  with,  far 
more  serious  and  disseminated  than  people  at  a  distance  can 
believe,  to  whom  such  absurdity  appears  as  a  mere  paper  and 
opposition  fanaticism.  If,  however,  all  those  discourses  are 
intended  to  establish  the  principle  of  authority  in  politics  as 
an  independent  principle,  such  as  we  find  it  in  the  church,  be- 
cause its  institutor  gave  divine  commandments,  it  would  only 
show  that  the  ruling  party  plainly  desires  absolutism.' 


'  There  is  no  doubt  in  my  mind  that  the  institutional  government  is  the  real 
school  of  civil  obedience.  Whether  the  following  remarkable  passage,  which  I 
found  in  Baron  Miiffling's  Memoirs  of  the  Campaign  of  1813  and  1814,  edited  by 
Col.  Philip  Yorke,  London,  1853,  must  be  in  part  explained  by  the  general  self- 
government  of  England,  and  by  the  fact  that  eveiy  English  gentleman  is  accus- 
tomed to  political  self-government  and  consequently  to  obedience,  I  shall  not 
decide,  but  I  strongly  incline  to  believe  that  we  must  do  so.  General  Miiffling 
was  the  Prussian  officer  in  the  staff  of  the  Duke  of  Wellmgton  who  sers'ed  as  an 
official  link  between  the  two  armies.  He  was,  therefore,  in  constant  personal 
intercourse  with  the  English  commander,  and  had  the  very  best  opportunity  of 
observing  that  which  he  reports. 

"  I  observed,"  says  General  Muffling,  "  that  the  duke  exercised  far  greater 
power  in  the  army  he  commanded  than  Prince  Blucher  in  the  one  committed  to 
his  care.  The  rules  of  the  English  service  permitted  the  duke's  suspending 
any  officer  and  sending  him  back  to  England.  The  duke  had  used  this  power 
during  the  war  in  Spain,  when  disobedience  showed  itself  among  the  higher 
officers.  Sir  Robert  Wilson  was  an  instance  of  this. 

"  Amongst  all  the  generals,  from  the  leaders  of  corps  to  the  commanders  of 
brigades,  not  one  was  to  be  found  in  the  active  army  who  had  been  known  as 
refractory. 

"  It  was  not  the  custom  in  this  army  to  criticise  or  control  the  commander-in- 
chief.  Discipline  was  strictly  enforced  ;  every  one  knew  his  rights  and  his 
duties      The    duke,  in  matters  of  service,  was  very  short  and    decided.     He 


AND  SELF-GOVERNMENT.  329 

Institutional  self-government  distinguishes  itself  above  all 
others  for  tenacity  and  a  formative,  assimilative,  and  transmis- 
sible character. 

Its  tenacity  is  shown  by  the  surviving  of  many  institutions 
even  in  the  most  violent  changes,  although  little  of  a  self- 
governing  character  may  be  left  in  them.  In  no  period  is 
this  truth  more  strikingly  illustrated  than  in  the  conquest  of 
the  Roman  empire  by  the  Northern  races.  The  Gothic  sword 
took  lands  and  scaled  towns,  but  it  could  not  scale  institutions, 
and  Theodoric  assimilated  his  Germanic  hosts  to  the  remnants 
of  Roman  institutions,  rather  than  the  Italians  to  the  con- 
querors. It  has  been  so  wherever  the  conqueror  met  with 
institutions  and  did  not  in  turn  oppose  institutions  of  his  own, 
as,  in  a  great  measure,  the  Visigoths  did  in  Spain.  The  mili- 
tary despotism  which  swept  over  the  whole  continent  of  Europe 
left  England  unscathed;  even  in  spite  of  Cromwell's  military 
and  organized  absolutism,  the  institutions  survived  Cromwell's 
vigor  and  the  prostitution  of  England  under  Charles  II. 

Lord  Macaulay  says  that  it  was  probably  better  that  the 
English  allowed  Charles  II.  to  return  without  insisting  upon 
distinct  and  written  guarantees  of  their  liberties.  This  may 
be  a  disputable  point,  for  we  see  that  the  English  were  after 
all  obliged  to  resort  to  them  in  the  Declaration  of  Rights  and 
Settlement ;  but  it  will  hardly  be  disputed  that  the  reigns  of 
Charles  II.  and  James  II.  would  have  been  fatal  to  England 
had  she  not  been  eminently  institutional  in  her  character. 

The  tenacious  life  of  institutional  liberty  is  proved  perhaps 
best  in  times  of  political  mediocrity  and  material  well-being. 
Gloomy,  or  ardent,  and  bold  times  may  try  men's  souls,  but 
periods  of  material  prosperity  and  public  depression  try  a 
country's  institutions.  They  are  the  most  difficult  times,  and 
liberty  is  lost  at  least  as  often  by  stranding  on  pleasant  shores 
as  by  wrecking  on  boiling  breakers. 

The  formative  character  of  institutional  self-government  is 


allowed  questions,  but  dismissed  all  such  as  were  unnecessary.  His  detractors 
have  accused  him  of  being  inclined  to  encroach  on  the  functions  of  others — a 
charge  which  is  at  variance  with  my  experience." 


330  ON  CIVIL   LIBERTY 

shown  in  such  cases  as  the  formation  of  the  Oregon  govern 
ment,  mentioned  before.  So  does  the  extensive  British  empire 
in  the  East  show  the  formative  and  vital  character  of  self- 
government.  No  absolute  government  could  have  established 
or  held  such  an  empire  at  such  a  distance,  and  yet  an  absolute 
ruler  would  consider  it  indicative  of  feebleness  and  not  of 
strength  in  a  government,  that  a  board  of  shareholders  could 
recall  a  governor-general,  and  that  a  man  like  Sir  Robert  Peel, 
as  premier,  acquiesced  in  it. 

Even  the  Liberians  may  be  mentioned  here.  People  wiio, 
while  with  us,  belonged  to  a  degraded  class,  many  of  whom 
were  actual  slaves,  and  the  rest  socially  unfree,  nevertheless 
have  carried  with  them  an  amount  of  institutionalism  which 
had  percolated  even  down  to  them;  and  a  government  has  been 
established  by  them  which  enjoys  internal  peace,  and  seems  to 
grow  in  strength  and  character  every  day,  at  the  same  time 
that  hundreds  of  attempts  in  Europe  have  sadly  miscarried. 
And,  again,  people  of  the  same  race,  but  having  originally 
lived  under  a  government  without  the  element  of  institutional 
self-rule — the  inhabitants  of  St.  Domingo  —  resemble  their 
former  masters  in  the  rapid  succession  of  different  govern- 
ments destitute  of  self-government  and  peace. 

The  words  of  Mr.  Everett  are  doubtless  true,  that  "  the 
French,  though  excelling  all  other  nations  of  the  world  in  the 
art  of  communicating  for  temporary  purposes  with  savage 
tribes,  seem,  still  more  than  the  Spaniards,  to  be  destitute  of 
the  august  skill  required  to  found  new  states.  I  do  not  know 
that  there  is  such  a  thing  in  the  world  as  a  colony  of  France 
growing  up  into  a  prosperous  commonwealth.  A  half  a 
million  of  French  peasants  in  Lower  Canada,  tenaciously 
adhering  to  the  manners  and  customs  which  their  fathers 
brought  from  Normandy  two  centuries  ago,  and  a  third  part 
of  that  number  of  planters  of  French  descent  in  Louisiana,  are 
all  that  is  left  to  bear  living  witness  to  the  amazing  fact  that 
not  a  century  ago  France  was  the  mistress  of  the  better  half 
of  North  America."  '     Are  they  succeeding  in  establishing  a 

'  Mr.  Everett's  Address  before  the  New  York  Historical  Society,  1853. 


AND  SELF-GOVERNMENT.  33 1 

vigorous  colony  in  Algeria  ?  It  seems  not ;  and  the  question 
presents  itself,  what  is  the  reason  of  this  inability  of  so  in- 
telligent a  nation  as  the  French  to  establish  flourishing  colo- 
nies ?  I  believe  that  the  chief  reason  is  this:  The  French  are 
thoroughly  wedded  to  centralism,  and  eminently  uninstitutional 
in  their  character.  They  want  government  to  do  everything 
for  them.  They  are  peculiarly  destitute  of  self-reliance  in  all 
public  and  communal  matters.  They  do  not  know  self-gov- 
ernment ;  they  cannot  impart  it.  Every  Frenchman's  mental 
home  is  Paris,  even  while  residing  in  France ;  as  to  a  colonial 
life,  he  always  considers  it  a  mere  exile.' 

The  assimilative  power  and  transmissible  character  of  the 
institution  are  closely  connected  with  its  tenacity  and  forma- 
tive character.  Few  things  in  all  history  seem  to  me  more 
striking,  and,  if  analyzed,  more  instructive,  than  the  fact  that 
Great  Britain,  though  monarchical  in  name,  and  aristocratic 
in  many  points,  plants  freedom  wherever  she  sends  colonies, 
and  becomes  thus  the  great  mother  of  republics;  while  France, 
with  all  her  democratic  tendencies,  her  worship  of  equality 
and  repeated  proclamations  of  a  republic,  has  never  ap- 
proached nearer  to  the  republic  than  setting  aside  a  ruling 
dynasty  ;  her  colonies  arj,  politically  speaking,  barren  depend- 
encies. They  do  not  bloom  into  empires.  The  colonies  of 
Spain  also  teach  a  grave  lesson  on  this  subject.^ 


'  There  are  doubtless  many  causes  operating  together,  and  one  of  these  may 
be  that  the  French  are  not  inherently  fond  of  agriculture,  as  the  Germanic  races 
are.     The  English  are  eminently  so. 

From  the  Canadian  census  published  in  1853,  the  following  difference  between 
the  French  and  the  .\nglo-Saxon  colonists  appeared  :  The  inhabitants  of  Lower 
Canada  are  chiefly  of  French  origin,  and  are  not  much  fewer  in  number  than  the 
Upper  Canadians ;  the  latter  being  952,004,  and  the  former  890,261,  according 
to  the  last  census.  But  although  so  close  to  them  in  point  of  numbers,  and  also 
in  the  quantity  of  land  they  have  under  cultivation,  the  inhaliitants  of  Lower 
Canada  raise  a  much  smaller  quantity  of  agricultural  produce  than  the  Upner 
Canadians  obtain  from  the  soil.  With  the  exception  of  maple  sugar  and  flax  in 
which  they  far  surpass  the  inhabitants  of  the  Upper  Province,  they  fall  grep'ly 
below  them  in  nearly  all  the  more  valuable  products. 

'  The  reader  has  a  right  to  ask  here,  why  then  did  not  the  Netherlands,  'o 


332  ON  CIVIL  LIBERTY 

The  power  by  which  institutional  self-government  assimilates 
various  and  originally  discordant  elements  is  forcibly  shown 
in  the  United  States,  where  every  year  several  hundred  thou- 
sand emigrants  arrive  from  countries  under  different  govern- 
ments. The  institutions  of  our  country  soon  absorb  and 
assimilate  them  as  integral  parts  of  our  polity.  In  no  other 
political  system  of  which  liberty  forms  any  part,  could  this 
be  done.  Imagine  an  influx  of  foreigners  in  a  country  like 
France  when  she  called  herself  republican,  and  the  danger  of 
so  large  a  body  of  foreigners  would  soon  be  perceived.  It 
would  be  an  evil  day  indeed  for  the  United  States  and  for  the 
emigrants,  if  our  institutions  were  to  be  broken  up  and  popu- 
lar absolutism  erected  on  the  ruins  of  our  institutional  liberty. 
We,  of  all  nations  on  earth,  are  most  interested  in  the  vigorous 
life  and  healthful  development  of  institutional  self-government. 
No  nation  has  so  much  reason  to  shun  mere  inarticulated 
equality  and  barren  centralization  as  ourselves. 

On  the  other  hand,  it  may  be  observed  that  the  Turks  to 


institutional  in  their  character,  establish  prosperous  self-governments  in  foreign 
parts,  as  England  did  ?     I  believe  the  answer  which  must  be  given  is  this  : 

The  Netherlands  lacked  at  home  a  protecting  national  government  proper — 
one  that  could  furnish  them  with  a  type  of  a  comprehensive  yet  popular  general 
government.  The  Netherlandish  colonies  always  remained  mere  dependencies 
upon  the  executive.     The  Netherlanders  did  not  plant  colonial  legislatures. 

The  Netherlands,  moi'eover,  had  lapsed  into  a  state  of  sejunction.  The  idea 
of  their  petty  sovereignty  was  carried  to  the  most  ruinous  extreme.  The  Greeks 
colonized,  indeed,  by  dotting  as  it  were  foreign  parts.  The  shores  of  the  Medi- 
terranean were  sprinkled  with  Greek  and  Phoenician  colonies  corresponding  to 
the  ancient  city-states — from  which  they  had  branched  off.  But  a  Netherlandish 
town  could  not  thus  have  established  a  little  colony  in  Java  or  the  West  Indies. 

Lastly,  I  believe  the  Netherlanders  did  not  become  the  disseminators  of  self- 
government,  although  institutional  in  their  character,  because  they  had  no  living 
common  law  to  take  with  them,  as  the  talent  of  the  mother-country.  They  had 
learned  the  civil  law — at  least  sufficient  of  it  to  stifle  farther  development  of 
common  law.  We  know  already  that  the  Roman  Law,  however  excellent  some 
of  its  principles  are,  is  void  of  the  element  of  self-government,  and,  because 
superinduced,  antagonistic  to  self-development  of  law. 

Nevertheless,  it  is  a  question  of  interest  to  Americans,  whether,  and  how  far, 
the  settlers  of  New  England  were  influenced  by  their  sojourn  in  the  republican 
Netherlands.  I  throw  out  the  question.  It  deserves  a  thorough  yet  very  plain 
and  unbiased  inquiry. 


AXD  SELF-GOVERNMENT.  333 

this  day  are  little  more  than  they  were  on  the  day  of  their 
conquest — isolated  rulers,  unassimilated  and  unassimilating, 
having  for  centuries  been  in  possession  of  the  finest  country 
in  Europe,  whence  in  the  fifteenth  century  our  civilization  re- 
ceived a  new  impulse.  So  unidentified  are  the  Turks  with  the 
country  or  its  population  that  the  idea  of  their  expulsion  from 
Europe  has  in  it  nothing  strange,  or  difficult  to  imagine.  The 
reasons  cannot  lie  in  their  race,  for  they  are  no  longer  Mon- 
golians ;  they  cannot  lie  in  their  religion,  for  Mohammedans 
have  flourished.  They  have  no  political  institutions,  carrying 
life  and  action  within  them,  nor  did  they  find  institutions, 
which  might  have  absorbed  the  conquerors.  The  Byzantine 
empire  had  become  a  mere  court  government  long  before  the 
Turks  conquered  it,  and  the  worst  court  government  that  ever 
existed  in  Europe.' 

The  stability  obtained  by  an  institutional  government  is 
closely  connected  with  the  tenacity  which  has  been  mentioned; 
but  it  is  necessary  to  observe  that  an  institutional  self-govern- 
ment seems  to  be  the  only  one  which  unites  the  two  necessary 
elements  of  continuity  and  progression,  or  applicability  to 
changing  conditions.  Asia,  with  its  retrospective  and  tradi- 
tional character,  and  without  political  mutations  proper,  offers 
the  sight  of  stagnation.  France,  with  her  ardently  prospective 
and  intellectual  character,  but  without  political  institutions 
proper,  lacks  continuity  and  political  development.  There  is 
a  succession  of  violent  changes,  which  made  Napoleon  I.  ex- 
claim, observing  the  fact  but  not  perceiving  the  cause,  "  Poor 
nations !  in  spite  of  all  your  enlightening  men,^  of  all  your 


'  The  same  is  said  of  the  Manchous  in  China.  The  ruling  soldier  tribe  has 
not  assimilated  itself  with  the  Chinese,  and  the  expulsion  of  the  dynasty  seems 
no  incredible  occurrence,  even  though  the  present  rebellion  should  not  be  suc- 
cessful. In  the  case  of  China,  the  conquered  race  had  many  firmly-established 
laws  and  civil  institutions,  to  which  the  conquering  race  continued  strangers,  at 
least  so  far  as  to  remain  chiefly  soldiers.  No  reliance  is  weaker  than  that  which 
rests  mainly  on  the  army,  even  if  the  army  is  in  fighting-order,  which  the  Chinese 
is  not. 

'  The  word  reported  to  have  been  used  by  Napoleon  is  lumih-es,  which  may 
mean  men  who  enlighten,  or  the  light  which  is  given.     The  passage  is  found  in 


234  ON  CIVIL  LIBERTY 

wisdom,  you  remain  subject  to  the  caprices  of  fashion  like 
individuals."  Now,  it  is  pre-eminently  institutional  self-gov- 
ernment which  prevents  the  rule  of  political  fashion,  because, 
on  the  one  hand,  it  furnishes  a  proper  organism  by  which 
public  opinion  is  elaborated,  and  may  be  distinguished  from 
mere  transitory  general  opinion,'  from  acclamation  or  panic  ; 
and,  on  the  other  hand,  it  seems  to  be  the  only  government 
strong  enough  to  resist  momentary  excitement  and  a  sweeping 
turn  of  the  popular  mind.  Absolute  popular  governments  are 
liable  to  be  influenced  by  every  change  of  general  passion  or 
desire,  and  monarchical  concentrated  absolutism  is  as  much 
exposed  to  the  mutations  of  passions  or  theories.  The  differ- 
ence is  only  that  single  men — ministers  or  rulers — may  effect 
the  sudden  changes  according  to  the  views  which  may  happen 
to  prevail.  The  English  government,  with  all  its  essential 
changes  and  reforms,  and  the  lead  it  has  taken  in  many  of  the 
latter,  during  this  century,  has  proved  itself  stable  and  con- 
tinuous in  the  same  degree  in  which  it  is  popular  and  institu- 
tional, compared  to  the  chief  governments  of  the  European 
continent.  The  history  of  a  people,  longing  for  liberty  but 
destitute  of  institutional  self-gov^ernment,  will  always  present 
a  succession  of  alternating  tonic  and  clonic  spasms.  Many 
of  the  Italian  cities  in  the  middle  ages  furnish  us  with  addi- 
tional and  impressive  examples. 

Liberty  is  a  thing  that  grows,  and  institutions  are  its  very 
garden  beds.  There  is  no  liberty  which  as  a  national  blessing 
has  leaped  into  existence  in  full  armor  like  Minerva  from  the 


the  Memorial  de  Sainte-Hel^ne,  by  Las  Cases.  Napoleon  was  speaking  of  the 
clergy,  and  the  whole  passage  runs  thus  : 

"  Je  ne  fais  rien  pour  le  clerge  qu'il  ne  me  donne  de  suite  sujet  de  m'en  re- 
pentir,  disait  Napoldon ;  peut-fitre  qu'apr^s  moi  viendront  d'autres  principes. 
Peut-fitre  verra-t-on  en  France  une  conscription  de  pretres  et  de  religieuses, 
comme  on  y  voyait  de  men  temps  une  conscription  militaire.  Peut-Stre  mes 
casernes  deviendront-elles  des  couvent!^  et  des  seminaires.  Ainsi  va  le  monde! 
Pauvres  nations !  en  d6pit  de  toutes  vos  lumieres,  de  toute  votre  sagesse,  vous 
demcurez  soumises  aux  caprices  de  la  mode  comme  de  simples  individus." 

«  Public  Opinion  and  General  Opinion  have  been  discussed  in  the  first  volume 
of  Political  Ethics. 


AXD  SELF-GOVERNMENT.  335 

head  of  Jove.  Liberty  is  crcscive  in  its  nature.  It  takes 
time,  and  is  difficult,  like  all  noble  things.  Things  noble  are 
hard,'  was  the  favorite  saying  of  Socrates,  and  liberty  is  the 
noblest  of  all  things.  It  must  be  defended,  developed,  con- 
quered, and  bled  for.  It  can  never  be  added,  like  a  mere 
capital  on  a  column;  it  must  pervade  the  whole  body.  If  the 
Emperor  of  China  were  to  promulgate  one  of  the  charters  of 
our  states  for  his  empire,  it  would  be  like  hanging  a  gold 
collar  around  the  neck  of  a  camel. 

Libert}'  must  grow  up  with  the  whole  system ;  therefore  we 
must  begin  at  once,  where  it  does  not  exist,  knowing  that  it 
will  take  time  for  perfection,  and  not  indeed  discard  it,  be- 
cause it  has  not  yet  been  commenced.  That  would  be  like 
givir.g  up  the  preparation  of  a  meal,  because  it  has  not  been 
comri9enced  in  time.  Let  institutions  grow,  and  sow  them  at 
once 

Wc  see,  then,  how  unphilosophical  were  the  words  of  the 
present  Emperor  of  the  French  to  the  assembled  bodies  of 
state  m  February,  1853,  when  he  said:  "Liberty  has  never 
aided  in  founding  a  durable  edifice ;  liberty  crowns  it  when  it 
has  been  consolidated  by  time." 

History  denies  it ;  political  philosophy  and  common  sense 
alike  contradict  it.  Liberty  may  be  planted  where  despotism 
has  reigned,  but  it  can  be  done  only  by  much  undoing,  and 
breaking  down ;  by  a  great  deal  of  rough  ploughing.  We 
cannot  prepare  a  people  for  liberty  by  centralized  despotism, 
any  more  than  we  can  prepare  for  light  by  destroying  the 
means  of  vision.  Nowhere  can  liberty  develop  itself  out  of 
despotism.  It  can  only  chronologically  follow  the  rule  of  ab- 
solutism ;  and  if  it  does  so,  it  must  begin  with  eliminating  its 
antagonistic  government.  Eveiy  return  to  concentrated  des- 
potism, therefore,  creates  an  additional  necessity  of  revolution, 
and  throws  an  increased  difficulty  in  the  way  of  obtaining 
freedom. 


«  Xale^a  tH  Kah'i,     May  we  not  add  Kal  kuTm  tH  ;\;aXe7rd? 


336  ON  CIVIL  LIBERTY 


CHAPTER    XXVIII. 

DANGERS    AND -INCONVENIENCES    OF    INSTITUTIONAL   SELF- 
GOVERNMENT. 

Institutional  self-government  has  its  dangers  and  incon- 
veniences, as  all  human  things  have,  and  if  its  success  requires 
the  three  elements  necessary  for  all  success  of  human  action 
— common  sense,  virtue  and  wisdom,  it  must  be  added  that, 
while  Self-Government  accepts  the  ancient  saying :  Divide 
and  rule,  in  a  sense  different  from  that  in  which  it  was  origi- 
nally meant,  the  opposite  is  equally  true :  Unite  and  rule,  as 
history  and  our  own  times  abundantly  prove. 

It  has  been  stated  that  nothing  is  more  common  than  gov- 
ernments which,  fearing  the  united  action  of  the  nation,  yet, 
being  obliged  to  yield  in  some  manner  to  the  demand  for 
liberty,  try  to  evade  it  and  to  deceive  the  people  by  granting 
provincial  representations  or  estates.  In  these  cases  division 
is  indeed  resorted  to  for  the  greater  chance  of  ruling  the 
people,  because  when  separate  they  are  weak,  and  one  portion 
may  be  played  off  against  the  other,  as  the  marines  and  sailors 
neutralize  one  another  on  board  the  men-of-war.  In  no  period 
probably  has  this  conduct  of  continental  governments  more 
strikingly  shown  itself  than  in  that  which  began  with  the 
downfall  of  Napoleon  and  ended  with  the  year  1848.  But  it 
must  not  be  forgotten  that  by  institutional  self-government  a 
polity  has  been  designated  that  comprehends  institutions  of 
self-government  for  all  the  regions  of  the  political  actions  of  a 
society,  and  it  includes  the  general  and  national  self-govern- 
ment as  well  as  the  minute  local  self-government. 

The  self-government  of  a  society,  be  this  a  township  or  a 
nation,  must  always  be  adequate  to  its  highest  executive ;  and 


AND  SELF-GOVERNMENT.  337 

when  any  branch  is  national,  all  the  three  branches  must  be 
national.  The  very  nature  of  civil  liberty,  as  we  have  found  it, 
demands  this.  They  must  work  abreast,  like  the  horses  of 
the  Grecian  chariot,  public  opinion  being  the  charioteer.  Had 
England,  as  she  has  now,  a  general  executive,  but  not,  as  now, 
a  general  parliament,  the  self-government  of  the  shires  and 
towns,  of  courts  and  companies,  would  soon  be  extinguished. 
Had  we  a  president  of  the  United  States  and  no  national  legis- 
lature, it  is  evident  that  either  the  president  would  be  useless, 
and-there  would  be  no  united  country,  or  if  the  executive  had 
power,  there  would  be  an  end  to  the  state  self-governments, 
even  if  the  president  were  to  remain  elective.  Liberty  re- 
quires union  of  the  whole,  whatever  this  whole,  or  Koinon,  as 
the  Greeks  styled  it,  may  be,  as  has  been  already  mentioned. 
Wisdom,  practice,  political  forbearance,  and  manly  independ- 
ence can  alone  decide  the  proper  degree  of  union,  and  the 
necessary  balance. 

One  of  the  dangers  of  a  strongly  institutional  self-govern- 
ment is  that  the  tendency  of  localizing  may  prevail  over  the 
equally  necessary  principle  of  union,  and  that  thus  a  disinte- 
grating sejunction  may  take  place,  which  history  shows  as  a 
warning  example  in  the  United  States  of  the  Netherlands.  I 
do  not  allude  to  their  Pact  of  Utrecht,  which  furnished  an 
inadequate  government  for  the  confederacy,  and  upon  which 
the  framers  of  our  federal  constitution  so  signally  improved, 
after  having  tried  a  copy  of  it  in  the  articles  of  the  confedera- 
tion. I  refer  to  the  Netherlandish  principle,  according  to 
which  every  limited  circle  and  even  most  towns  did  not  only 
enjoy  self-government,  but  were  sovereign,  and  to  each  of 
which  the  stadtholder  was  obliged  to  take  a  separate  oath  of 
fidelity.  The  Netherlands  presented  the  very  opposite  ex- 
treme of  French  centralism.  The  consequence  has  been  that 
the  real  Netherlandish  greatness  lasted  but  a  century,  and  in 
this  respect  may  almost  be  compared  to  the  brevity  of  Portu- 
guese grandeur,  though  it  resulted  from  the  opposite  cause/ 

'  We  may  also  mention  as  a  want  of  union,  the  fact  that  unanimity  of  all  the 
states  was  required  for  all  the  most  important  measures,  such  as  taxation  and  war 

22 


338 


ON  CIVIL   LIBERTY 


The  former  constitution  of  Hungar}',  according  to  which 
each  comitate  had  the  right  to  vote  whether  it  would  accept 
or  not  the  law  passed  by  the  diet/  is  an  instance  of  the  ruinous 
effect  of  purely  partial  self-government.  The  nation,  as  na- 
tion, must  participate  in  it ;  and  Hungary  lost  her  liberty,  as 
Spain  and  all  countries  have  done  which  have  disregarded 
this  part  o(  self-government. 

Another  danger  is  that  with  reference  to  the  domestic  gov- 
ernment, the  local  self-government  may  impede  measures  of  a 
general  character.  Instances  and  periods  of  long  duration 
occur,  which  serve  as  serious  and  sometimes  as  alarming  com- 
mentaries on  the  universal  adage,  that  what  is  everybody's 
business  is  nobody's  business.  The  roads,  considered  by  the 
Romans  so  important  that  the  road-law  found  a  place  on  the 
twelve  tables,  and  sanitary  regulations,  frequently  suffer  in  this 
way.  The  governments  of  some  of  our  largest  cities  furnish 
us  with  partial  yet  striking  illustrations. 

It  might  be  added  that  one  of  the  dangers  of  self-govern- 
ment lies  in  this,  that  the  importance  of  the  institutional 
character  may  be  forgotten,  that  the  limitations  may  be  con- 
sidered as  fetters,  and  that  thus  the  people  may  come  to  forget 
that  part  of  self-government  which  relates  to  the  being  gov- 
erned, and  only  remember  that  part  which  consists  in  their 
governing.  If  this  takes  place,  popular  absolutism  begins,  and 
one  ^art  rules  supreme  over  the  other. 

We  reply  to  these  objections  that  it  is  a  characteristic  of 
absolutism  that  it  believes  men  can  be  ruled  by  formulas  and 
systems  alone.  The  scholar  of  liberty  knows  that  important 
as  systems  and  institutions,  principles  and  bills  of  rights  are, 
they  still  demand  rational  and  moral  beings,  for  which  they 
are  intended,  like  the  revelation  itself,  which  is  for  conscious 
man  alone.  Everything  in  this  world  has  its  dangers.  In 
this  lies  the  fearful  responsibility  of  demagogues.  "  Take 
power,  bear  down  limitation,"  is  their  call  on  the  people,  as  it 


'  The  author  of  the  famous  Oceana  proposed  a  similar  measure  for  England, 
as  St.  Just,  "  the  most  advanced"  follower  of  Robespierre,  did  for  France. 


AND  SELF-GOVERNMENT. 


339 


was  the  call  of  the  courtiers  on  Louis  XIV.  Their  advice  of 
political  intemperance  resembles  that  which  is  given  on  the 
tomb  of  Sardanapalus,  regarding  bodily  intemperance:  "Eat, 
drink,  and  lust ;  the  rest  is  nothing."  ' 

We  must  the  more  energetically  cling  to  our  institutional 
government,  and  the  more  attentively  avoid  extremes.  At 
the  same  time,  the  question  is  fair  whether  other  systems 
avoid  the  danger  or  do  not  substitute  greater  evils  for  it ;  and, 
lastly,  we  must  in  this,  as  in  all  other  cases,  while  honestly 
endeavoring  to  remedy  or  prevent  evil,  have  an  eye  to  the 
whole  and  see  which  yields  the  fairest  results.  Nothing, 
moreover,  is  more  dangerous  than  to  take  single  brilliant  facts 
as  representatives  of  systems.  They  prove  general  soundness 
as  little  as  brilliant  deeds  necessarily  prove  general  morality. 

It  is  these  dangers  that  give  so  great  a  value  to  constitu- 
tions, if  conceived  in  the  spirit  of  liberty.  The  office  of  a 
good  constitution,  besides  that  of  pronouncing  and  guarantee- 
ing the  rights  of  the  citizen,  is  that,  as  a  fundamental  law  of 
the  state,  it  so  defines  and  limits  he  chief  powers,  that,  each 
moving  in  its  own  orb,  without  jostling  the  others,  it  prevents 
jarring  and  grants  harmonious  protection  to  all  the  minor 
powers  of  the  state.^ 

A  constitution,  whether  it  be  an  accumulative  one,  as  that 
of  Great  Britain,  or  an  enacted  one,  as  ours,  is  always  of  great 
importance,  as  indeed  all  law  is  important  wherever  there  is 
human  action ;  but,  from  what  has  been  stated,  it  will  be 
readily  perceived  that  constitutions   are  efficient  toward  the 


'  "  The  epitaph  inscribed  upon  the  tomli  of  Sardanapalus,  '  Sardanapalus,  the 
son  of  Anacyndaraxos,  built  Anchiola  and  Tarsos  in  one  day  :  eat,  drink,  and  last ; 
the  rest  is  nothing,'  has  been  quoted  for  ages,  and  its  antiquity  is  generally  ad- 
mitted."— Layard's  Nineveh,  vol.  ii.  p.  478. 

*  Constitutions,  therefore,  must  not  be  changed  too  easily  or  too  frequently; 
for,  if  a  constitution  be  almost  periodically  changed,  by  the  sovereign  power  of 
the  people,  it  is  obvious  that  the  absolute  power  of  the  people  in  a  degree  enters 
as  an  element  of  government.  Absolutism,  therefore,  is  approached.  Parlia- 
ment is  theoretically  omnipotent  in  a  political  sense ;  the  people,  with  us,  are 
politically  omnipotent;  and  if  the  people  enact  new  constitutions  every  five  or 
ten  years,  the  convention  sils,  in  reality,  as  an  omnipotent  parliament. 


340 


ON  CIVIL  LIBERTY 


obtaining  of  their  main  ends,  the  Hberty  of  the  citizen,  only  in 
the  same  degree  as  they  themselves  consist  of  an  aggregate  of 
institutions ;  as,  for  instance,  that  of  the  United  States,  which 
consists  of  a  distinct  number  of  clearly  devised  and  limited 
as  well  as  life-possessing  institutions,  or  as  that  of  England, 
which  consists  of  the  aggregate  of  institutions  considered  by 
him  who  uses  the  term  British  Constitution,  of  fundamental 
and  vital  importance.  It  will,  moreover,  have  appeared  that 
these  constitutions  have  a  real  being  only  if  founded  upon 
numerous  wide-spread  institutions,  and  feeding,  as  it  were, 
upon  a  general  institutional  spirit.  Without  this,  they  will  be 
little  more  than  parchment ;  and,  important  as  our  constitu- 
tions are,  it  has  already  been  seen  that  the  institution  of  the 
Common  Law,  on  which  all  of  them  are  based,  is  still  more 
important.  It  cannot  be  denied  that  occasional  jarring  takes 
place  in  a  strongly  institutional  government.  It  is,  as  we 
have  called  it,  of  a  co-operative  character,  and  all  co-opera- 
tion may  lead  to  conflict.  There  is,  however,  occasional  jar- 
ring of  interests  or  powers,  wherever  there  are  general  rules 
of  action. 

This  jarring  of  laws,  and  especially  of  institutions,  so  much 
dreaded  by  the  absolutists,  whose  beau-ideal  is  uncompromis- 
ing and  unrelieved  uniformity,  is  very  frequently  the  means 
of  development,  and  of  that  average  justice  which  constitutes 
a  feature  of  all  civil  liberty.  If  there  be  anything  instructive 
in  the  history  of  free  nations,  and  of  high  interest  to  the 
student  of  civil  liberty,  it  is  these  very  conflicts,  and  the 
combined  results  to  which  they  have  led.  It  must  also  be 
remembered  that  liberty  is  life,  and  life  is  often  strife,  in  the 
social  region  as  in  that  of  nature.  If,  at  times,  institutions 
lead  to  real  struggles,  we  have  to  decide  between  all  the  good 
of  institutional  liberty  with  this  occasional  inconvenience,  and 
absolutism  with  all  its  evils  and  this  occasional  avoidance  of 
conflicting  interests ;  for  even  under  an  absolutism  it  is  but 
occasional.  Wha'  domestic  conflicts  have  there  not  been  in 
the  history  of  Russia  and  Turkey ! 

The  institution  unquestionably  results  in  part  from,  and  in 


AND  SELF-GOVERNMENT.  34 1 

tarn  promotes,  respect  for  that  which  has  been  estabhshed  or 
grown.  This  leads  occasionally  to  a  love  of  effete  institutions, 
even  to  fanaticism ;  but  fanaticism,  which  consists  in  carrying 
a  truth  or  principle  to  undue  length,  irrespective  of  other 
truths  and  principles,  equally  important,  besets  man  in  all 
spheres.  Has  absolutism  not  its  own  bigotry  and  fanaticism  ?* 
When  an  institution  has  become  effete ;  when  nothing  but 
the  form  is  left ;  when  its  life  is  fled — in  one  word,  when  the 
hull  of  an  institution  remains,  and  it  has  ceased  to  be  a  real 
institution,  it  is  inconvenient,  dangerous,  or  it  may  become 
seriously  injurious.  Nothing,  as  I  stated  before,  is  so  con- 
venient for  despotism,  as  the  remaining  forms  of  an  obsolete 


'  I  have  expressed  my  view  on  this  subject  in  an  address  to  a  graduating  class. 
I  copy  the  passage  here,  because  I  believe  the  truth  it  contains  important  : 

"  Remember  how  often  I  have  endeavored  to  impress  upon  your  minds  the 
truth,  that  there  is  no  great  and  working  idea  in  history,  no  impulse  which  passes 
on  through  whole  masses,  like  a  heaving  wave  over  the  sea,  no  yearning  and 
endeavor  which  gives  a  marking  character  to  a  period,  and  no  new  institution  or 
new  truth,  which  becomes  the  substantial  addition  that  a  certain  age  adds  to  the 
stock  of  progressive  civilization — that  has  not  its  own  caricature  and  distorted 
reflection  along  with  it.  No  Luther  rises  with  heroic  purpose,  without  being 
caricatured  in  a  Carlstadt.  The  miracle  wrought  by  Him  to  whom  it  was  no 
miracle,  is  mimicked  in  toyish  marvels  for  easy  minds.  The  communists  are  to 
the  dignity  of  labor  what  the  hideous  anabaptists  were  to  the  Reformation,  or 
tyrannical  hypocrites  in  England  to  the  idea  of  British  liberty  in  a  Pym  or  Hamp- 
den. There  was  a  truth  of  elementary  importance  conveyed  in  the  saying  of 
former  ages,  however  irreverent  it  may  appear  to  our  taste,  that  Satan  is  the 
mimicking  and  grimacing  clown  of  the  Lord.  I  will  go  farther,  and  assert,  that 
no  great  truth  can  be  said  to  have  fairly  begun  to  work  itself  into  practice,  and- 
to  produce,  like  a  vernal  breath,  a  new  growth  of  things,  if  we  do  not  observe 
somewhere  this  historic  caricature.  Has  Christianity  itself  fared  better?  Was 
the  first  idea,  which  through  a  series  of  errors  led  to  the  anchorites  and  pillar 
saints,  not  a  true  and  holy  one  ?  Does  not  all  fanaticism  consist  in  recklessly 
carrying  a  true  idea  to  an  extreme,  irrespective  of  other  equally  true  ones,  which 
ought  to  be  developed  conjointly,  and  under  the  salutary  influence  of  mutual 
modification?  There  is  truth  in  the  first  idea  whence  tlie  communist  starts,  as 
much  so  as  there  is  truth  in  the  idea  which  serves  as  a  starting-post  for  the  advo- 
cate of  the  ungodly  theory  of  divine  right ;  but  both  carry  out  their  fundamental 
principle  to  madness,  and,  ultimately,  often  run  a  muck  in  sanguinary  ferocity. 
Do  not  allow  yourselves,  then,  to  be  misled  by  these  distortions,  or  to  be  driven 
into  hopeless  timidity,  which  would  end  in  utter  irresolution,  and  a  misconcep- 
tion of  the  firmest  truths." 


342 


ON  CIVIL  LIBERTY 


freedom,  or  forms  of  freedom  purposely  invented  to  deceive. 
A  nobility  stripped  of  all  independence,  and  being  nothing 
but  a  set  of  court  retainers,  the  Roman  senate  under  the 
emperors,  the  court  of  peers  under  Henry  VIII.,  representative 
houses  without  power  or  free  action,  courts-martial  dictated 
to  by  a  despot,  elections  without  freedom,  are  fearful  engines 
of  iniquity.  They  bear  the  responsibility,  without  free  agency. 
They  are  in  practice  what  syllogism  is  without  truthfulness. 
But  this  is  no  reproach  to  the  institution  in  general,  nor  any 
reason  why  we  ought  not  to  rely  upon  it.  Many  an  old 
church  has  served  as  a  den  for  robbers.  Shall  we  build  no 
churches  ?  If  the  institution  is  effete,  let  it  be  destroyed,  but 
do  it,  as  Montesquieu  says  of  laws  in  general,  "  with  a  trem- 
bling hand,"  lest  you  destroy  what  only  appeared  to  your  one- 
sided view  as  effete. 

Still  more  vigorously  must  the  battering-ram  be  directed 
against  institutions  which  from  the  beginning  have  been  bad, 
or  which  plainly  are  hostile  to  a  new  state  of  things.  There 
are  institutions  as  inconsistent  with  the  true  aim  of  society, 
though  few  are  as  monstrous,  as  the  regularly  incprporated 
prostitutes  of  ancient  Geneva  were.  They  must  be  razed. 
All  historical  development  contains  conservatism,  progress,  and 
revolution,  as  Christianity  itself  is  most  conservative  and  most 
revolutionary.  The  vital  question  is,  when  they  are  in  place. 
And  from  all  that  has  been  stated,  it  must  have  appeared  that 
the  institution  greatly  aids  in  the  best  progress  of  which  so- 
ciety is  capable,  that  which  consists  in  organic  changes,  changes 
which  lie  in  the  very  principles  of  continuity  and  conservatism 
themselves. 

There  are  no  countries  on  the  European  continent  where 
such  constant  and  vast  changes  are  going  on,  in  spite  of  all 
their  outer  revolutions,  as  in  the  United  States  and  England, 
for  the  very  reason  that  they  are  institutional  governments — 
that  there  exists  self-government  with  them ;  yet  they  move 
within  their  institutions.  This  truth  is  symbolically  exempli- 
fied in  Westminster  Abbey  and  the  Champ-de-Mars.  Century 
after  century  the  former  has  stood,  and  what  course  of  his- 


AND  SELF-GOVERNMENT.  343 

torlcal  development  has  flowed  through  it !  What  representa- 
tive festivities,  on  the  other  hand,  from  the  feast  of  the  uni- 
versal federation  of  France  in  1790  to  the  distribution  of 
eagles  to  the  army  in  May,  1852,  have  succeeded  each  other 
on  the  latter — revolutionaiy,  conventional,  republican,  impe- 
rial, royal,  imperial-restorational,  again  Bourbonian,  Orlean- 
istic,  socialistic,  and  uncrowned-imperialist  and  imperial — yet 
centralism  has  worked  its  steady  dis-individualizing  way 
through  all.'  There  are  "  sermons  in  stones,"  and  sermons 
in  places. 


•  The  following  is  taken  from  a  late  (1852)  French  paper.  It  is  of  sufficient 
symbolic  interest  to  find  a  place  in  a  note : 

In  1790,  on  the  14th  of  July,  the  anniversary  of  the  taking  of  the  Bastile  was 
celebrated  by  what  was  called  the  Fite  of  the  Universal  Federation  of  France. 
Delegations  were  sent  to  it  by  every  department,  city,  town,  and  village  in  the 
country,  all  eager  to  manifest  their  enthusiasm  for  the  revolution  of  1789.  Every 
hundred  of  the  National  Guards  was  represented  by  six  members ;  and  there 
were  also  six  deputies  from  every  regiment  of  infantry,  and  four  for  every  regi- 
ment of  cavalry.  These  "  confederates,"  as  they  were  styled,  were  all  enter- 
tained by  the  inhabitants  of  Paris,  who  are  said  to  have  rivalled  each  other  in 
hospitality.  In  order  to  afford  facilities  to  the  immense  number  of  spectators 
who  were  expected  on  the  Champ-de-Mars,  over  twelve  thousand  workmen 
were  employed  To  surround  it  with  embankments.  Fears,  however,  being  still 
entertained  that  the  work  would  not  be  completed  in  time,  all  Paris  turned  out 
to  assist.  Men,  women,  and  children,  the  National  Guard,  priests  even,  and 
sisters  of  charity,  all  took  part  in  it.  The  Abbd  Sieyes  and  Viscount  Beauharnais 
were  seen  tugging  together  at  the  same  wheelbarrow.  At  the  entrance  to  the 
field  was  erected  an  immense  triumphal  arch ;  while  in  the  centre  was  raised  an 
altar,  called  the  Altar  of  the  Country,  at  which  officiated  Talleyrand,  then  bishop 
of  Autun.  A  bridge  of  boats  was  stretched  across  the  Seine,  near  the  Champ-de- 
Mars,  where  since  has  been  erected  the  bridge  of  Jena. 

In  1 79 1,  on  the  i8th  of  September,  there  was  a  splendid  F^te  for  the  publica- 
tion of  the  constitution,  and  for  receiving  the  oath  of  fidelity  to  it  from  Louis 
XVI. 

In  1792,  on  the  15th  of  April,  the  F^te  of  Liberty  was  celebrated.  The  centre 
of  attraction  was  an  enormous  car,  in  which  was  placed  a  statue  of  Liberty, 
holding  a  liberty-cap  in  one  hand,  and  in  the  other  a  club.  To  such  an  extent 
was  the  principle  of  freedom  carried  on  this  occasion,  that  there  was  not  a  single 
policeman  present  to  preserve  order.  The  master  of  ceremonies  was  armed  only 
with  an  ear  of  corn  :  nevertheless,  there  is  said  to  have  been  no  disorder. 

In  1793,  there  was  a  file  in  honor  of  the  abolition  of  slavery.  On  the  loth 
of  August  of  the  same  year,  there  was  afite  for  the  acceptance  of  the  constitution 


244  ON  CIVIL  LIBERTY 

of  1793.  The  president  of  the  convention  received  eighty-three  commissioners 
from  the  departments  ;  after  which  the  registers  upon  which  were  inscribed  the 
votes  of  the  Primaiy  Assemblies  were  brought  to  him,  and  he  deposited  them 
upon  the  "Altar  of  the  Country,"  amid  the  firing  of  cannon,  and  the  rejoicing 
of  the  people,  who  swore  to  defend  the  constitution  with  their  lives.  On  the 
2d  of  December  following,  the  Fete  of  Victories  took  place,  in  celebration  of  the 
taking  of  Toulon.  On  this  occasion  the  Altar  of  the  Country  was  transformed, 
by  the  poet-painter  David,  into  a  temple  of  immortality. 

In  1794,  on  the  21st  of  January,  the  anniversary  of  the  death  of  Louis  XVI. 
was  celebrated  by  all  the  principal  authorities  going  to  the  Altar  of  the  Country 
and  renewing  their  oath  of  hatred  to  royalty.  On  the  9th  of  June  of  the  same 
year,  the  Fete  of  the  Supreme  Being  commenced  at  the  Tuileries,  and  was  termi- 
nated on  the  Chatnp-de-Mars.  In  the  centre  of  the  plain  a  "  Mountain"  was 
thrown  up,  surmounted  by  an  oak.  On  the  summit  of  the  mountain  were  seated 
the  representatives  of  the  people ;  while  near  them  were  a  number  of  young 
men,  with  drawn  swords  in  their  hands,  in  the  act  of  striking  a  symbolical  figure 
of  the  "  monster  fanaticism." 

In  1796,  on  the  21st  of  January,  the  anniversary  of  the  death  of  Louis  XVI. 
was  again  celebrated.  All  the  public  functionaries  renewed  once  more  their 
oath  of  hatred  to  royalty,  and  the  people  spent  the  day  singing  the  Marseillaise, 
Qa  ira,  and  various  patriotic  songs.  On  the  30th  of  March  following,  the  FUt 
of  Youth  took  place,  on  occasion  of  arming  all  the  young  men  over  sixteen  years 
of  age ;  and  on  the  30th  of  April,  on  the  proposition  of  Carnot,  the  FHe  of 
Victories  was  celebrated. 

In  1798,  on  the  20th  of  March,  was  the  Fete  of  the  Sovereignty  of  the  People. 
On  the  tenth  Vendemiaire,  there  was  a  funeral  y^/^  in  memory  of  General  Hoche. 
On  the  tenth  Messidor,  the  Fite  of  Agriculture  took  place,  with  a  great  display 
of  chariots,  cattle,  fruits,  etc.  During  the  five  supplementary  days  of  the  revo- 
lutionary year,  there  was  a  series  oi  files,  with  an  exposition  of  all  the  products 
of  French  industry,  on  the  Champ-de-Mars. 

In  1801  there  were  fetes  in  memory  of  the  foundation  of  the  Republic,  and  in 
celebration  of  general  peace,  which  were  attended  by  the  First  Consul. 

In  1804,  on  the  loth  of  November,  Napoleon,  then  emperor,  repaired  to  the 
Champ-de-AIai  s,  and  there  received  the  oath  of  fidelity  and  obedience  from 
deputations  representing  all  the  corps  of  the  army. 

In  1814,  on  the  7th  of  September,  the  government  of  the  Restoration  dis- 
tributed colors  to  the  National  Guard  of  Paris.  The  object  of  this  distribution 
was  to  efface,  if  possible,  even  the  memory  of  the  eagles  of  the  empire  and  of 
the  tri-colored  standard  of  the  revolution.  An  altar,  glittering  with  gold  and 
costly  drapery,  was  erected  near  the  military  school,  and  in  front  was  placed  the 
throne,  occupied  by  Louis  XVIII.,  who  was  accompanied  by  the  Count  of  Artois, 
the  Duke  of  Angouleme,  and  the  Duke  of  Berri.  Mass  was  celebrated  by  the 
archbishop  of  Paris,  M.  Talleyrand-Perigord,  uncle  of  the  bishop  of  Autun,who, 
as  we  have  seen,  officiated  at  the  File  of  Federation  in  1790.  The  National 
Guards  defiled  before  the  throne,  while  the  band  played  Vive  Henri  IV  and 
Charmante  Gabrielle. 


AND  SELF-GOVERNMENT.  345 

In  1815,  on  the  ist  of  June,  there  was  z.pte  in  celebration  of  the  return  of  the 
emperor.  Napoleon  appeared  on  the  throne  with  his  three  brothers.  A  mass 
was  performed ;  the  constitution  was  acclaimed  with  enthusiasm ;  and  the  air 
was  rent  with  cries  of  Vive  Napolion  !  The  oath  was  taken  with  enthusiasm. 
Napoleon  addressed  the  soldiers  from  the  throne  in  the  following  words  : 

"Soldiers  of  the  National  Guard  of  Paris;  soldiers  of  the  Imperial  Guard; 
I  confide  to  you  the  imperial  eagle,  with  the  national  standard.  You  swear  to 
defend  it  with  your  lives,  if  need  be,  against  the  enemies  of  the  country  and  this 
throne.     You  swear  never  to  rally  under  any  other  banner." 

During  the  restoration,  the  Champ-de-]\Iars  was  used  chiefly  for  reviews  of  the 
National  Guard ;  the  most  notable  of  which  was  the  last  one  passed  by  Charles 
X.,  when  the  citizens  manifested  that  hostility  to  the  king  which  was  a  prelude 
to  the  revolution  of  1830. 

In  1837  there  was  a  grand  fite  in  honor  of  the  marriage  of  the  Duke  of  Or- 
leans, on  which  occasion  the  crowd  in  the  Champ  de- Mars  was  so  great  that 
twenty-four  persons  were  suffocated  or  crushed  to  death.  During  most  of  the 
reign  of  Louis  Philippe,  however,  the  principal  gatherings  in  the  Chainp-de-ATars 
were  on  occasion  of  military  reviews  and  horse-races. 

In  1848,  on  the  22d  of  May,  the  FUe  of  Concord  was  celebrated  with  great 
pomp.     The  il/owZ/e-Mr  alluded  to  the  occasion  thus: 

"  This  solemnity  was  celebrated  with  an  eclat  enhanced  by  the  magnificent 
weather.  Under  so  clear  a  sky,  and  surrounded  by  so  many  joyful  countenances, 
how  was  it  possible  to  experience  any  feelings  but  those  of  love,  conciliation,  and 
harmony  ?  What  struck  us,  especially,  was  the  attitude,  so  full  of  enthusiasm 
and  confidence,  of  the  vast  concourse  of  people  that  crowded  the  Chauip-de- 
Mars ;  cries,  a  thousand  times  repeated,  of  Vive  la  Rkptibliqtie !  Vive  la  Re- 
pitbliquc  Democratique  !  Vive  V Asset)iblee  N'ationale  !  broke  out,  in  formidable 
chorus,  every  instant,  as  if  to  proclaim  the  respect  of  the  people  for  the  institu- 
tions which  they  have  adopted,  and  their  invincible  repugnance  to  every  retro- 
grade or  reactionary  idea." 

To  the  foregoing  must  be  added  the  gigantic  military /^/"^  on  the  loth  of  May, 
1852,  called  the  File  of  Eagles,  that  is,  the  distribution  of  eagles  to  all  the  regi- 
ments of  the  army.  A  cock  had  been  adopted  as  symbol  of  the  first  republic, 
owing  either  to  an  etymological  misconception  of  the  word  Gallia,  or  to  an  in- 
tended pun  on  it.  The  emperor  adopted  the  Roman  eagle;  the  Bourbons 
brought  back  the  three  fleurs-de-lys ;  and  in  1830  the  cock  was  restored,  Louis 
Napoleon,  when  president  for  ten  years,  restored  the  imperial  eagle.  It  must  be 
owned,  the  cock  looked  very  much  as  our  turkey  would  have  looked  had  we 
adopted  Franklin's  humorous  proposition  of  selecting  our  native  and  respectable 
turkey,  instead  of  our  fine  native  eagle. 

What  feast  will  be  celebrated  on  the  same  spot  next  ?  Whatever  it  may  be, 
probably  it  will  be  nothing  intrinsically  different  from  the  last. 


346 


ON  CIVIL  LIBERTY 


CHAPTER    XXIX. 

ADVANTAGES    OF    INSTITUTIONAL   GOVERNMENT,   FARTHER 
CONSIDERED. 

There  are  some  additional  observations  suggested  by  the 
subject  of  institutional  self-government  and  by  that  of  the 
institution  in  general,  which  have  been  deferred  in  order  to 
avoid  an  interruption  of  the  general  argument,  and  to  which 
it  is  necessary  now  to  turn  our  attention. 

It  seems  to  me  a  symptomatic  fact  that  the  term  People  has 
at  no  period,  so  far  as  I  am  acquainted  with  the  domestic  his- 
tory of  England,  become  in  politics  a  term  of  reproach,  not 
even  in  her  worst  periods.  On  the  contrary,  the  word  People 
has  always  been  surrounded  with  dignity,  and  when  Chatham 
was  called  "The  people's  minister,"  it  was  intended  by  those 
who  gave  him  this  name  as  a  great  honor.  It  was  far  different 
on  the  continent.  In  French,  in  German,  and  in  all  the  conti- 
nental languages  with  which  I  am  acquainted,  the  correspond- 
ing words  sank  to  actual  terms  of  contempt.  The  word  Peuple 
was  used  in  France,  before  the  first  revolution,  by  the  higher 
classes,  in  a  disdainful  and  stigmatizing  sense,  and  often  as 
equivalent  with  canaille — that  term  which  played  so  fearful  a 
part  in  the  sanguinary  drama  of  the  revolution,  and  which 
Napoleon  purposely  Used,  in  order  emphatically  to  express 
that  he  was  or  wished  to  be  considered  the  man  of  the  people, 
when  he  said,  somewhat  soldierly :  Je  suis  moi-meme  sorti  de 
la  canaille.'     In  German,  the  words  Volk  and   Nation  came 


»  The  Dictionary  of  the  Academy  gives,  as  the  last  two  meanings  of  the  word 
Peuple — unenlightened  men,  and  men  belonging  to  the  lowest  classes.  Trench, 
in  his  Lessons  in  Proverbs,  quotes  the  French  Jesuit  Bonhouis,  who  says :  Les 
proverbes  sont  les  sentences  du  peuple,  et  les  sentences  sont  les  proverbes  des 
honnStes  gens.  (But  there  are  very  wicked  proverbs.)  Homtete  means,  indeed, 
frequently  something  like  the  Latin  Iiones/its,  and  not  exclusively  ovlt  honest,  but 


AND  SELF-GOVERNMENT.  347 

actually  to  be  used  as  vilifying  invectives,  even  by  the  lower 
classes  themselves.  The  words  never  ceased,  indeed,  to  be 
used  in  their  legitimate  sense,  but  they  were  vulgarly  applied 
in  the  meaning  which  I  have  given.  They  acquired  this 
ignominious  sense  because  the  nobility,  a  very  numerous 
class  on  the  continent,  looked  with  arrogance  upon  the  people, 
and  the  people,  looking  up  to  the  nobility  with  stolid  admira- 
tion, aped  the  pride  of  that  class.  It  is  a  universal  law  of 
social  degradation  that  it  consists  always  of  a  chain  of  de- 
graded classes  who  at  the  same  time  are  or  try  to  be  in  turn 
degraders,  as  oppression  begets  the  lust  of  oppressing  in  the 
oppressed. 

On  the  other  hand,  the  English  word  People  has  never 
acquired,  not  even  during  the  English  revolution,  that  import 
of  political  horror  which  Demos  had  in  the  times  of  Cleon  for 
the  reflecting  Athenian,  or  Peuple  in  the  first  French  revolu- 
tion.' What  is  the  cause  of  these  remarkable  facts  ?  I  can  see 
no  other  than  that  there  has  always  existed  a  high  degree  of 
institutional  self-government  in  England — a  VQxy  high  degree, 
if  we  compare  her  to  the  continent.  The  people  never  ceased 
to  respect  themselves  ;  and  others  never  ceased  to  feel  their 
partial  dependence  upon  them.  The  aristocracy  of  England, 
a  patrician  body,  far  more  elevated  than  any  continental  no- 
bility, still  remained  connected  with  the  people,  by  the  fact 
tha!  only  one  of  the  patrician  family  can  enjoy  the  peerage. 
This  distinction  does  not,  therefore,  indicate  a  social  status, 
inhering  in  the  blood ;  for  that  runs  in  the  whole  family.  It 
mdicates  a  political  position.' 


even  with  this  addition  the  English  tenn  People  could  never  have  been  contradis- 
tinguished from  honnefes  geiis.  To  these  remarks  we  must  add  the  mischievous 
error  of  giving  the  dignified  name  the  people  to  some  people  gathered  together  in 
the  street.  We  find,  in  the  French  papers  and  other  publications,  at  the  time  of 
the  first  revolution,  constant  use  of  the  term  in  such  manner,  as:  le  peuple  has 
hanged  a  bakei-,  etc.,  when  the  murder  was  committed  by  a  rabble  of  a  few. 
This  confusion  of  a  few  lawless  people  with  the  people,  for  whom  the  sovereign 
power  was  clain.ed,  and,  in  turn,  the  arrogation  of  the  sacred  name  by  a  few 
Parisians,  maybe  observed  throughout  the  history  of  the  revolution. 

'  Aristocratic  as  England  is  in  many  respects,  it  is  nevertheless  true  that  there 


348  ON  CIVIL  LIBERTY 

Possibly  most  of  my  American  and  English  readers  may 
not  perceive  the  whole  import  of  these  remarks ;  but  let  them 
live  for  a  considerable  time  on  the  continent  of  Europe,  and 
their  own  observations  will  not  fail  to  furnish  them  with  com- 
mentaries and  full  explanations  of  the  preceding  pages. 

Another  subject  to  which  I  desire  to  direct  attention  is 
Usage,  which,  as  it  has  been  stated,  forms  an  important  element 
of  the  institution,  and,  consequently,  of  institutional  govern- 
ment. This  is  frequently  not  only  admitted  by  the  absolutists, 
but  in  bad  faith  insisted  upon.  Continental  servilists  fre- 
quently eulogize  the  liberty  of  the  English,  but  wind  up  by 
pointing  at  their  institutions  and  their  widely-spread  usages, 
observing  that  since  these  are  necessary  and  do  not  exist  on 
the  continent,  neither  can  liberty  exist.  It  is  a  faithless  plea 
for  servilism.  An  adequate  reply  is  this :  that  in  no  sphere 
can  we  attain  a  given  end  if  we  do  not  make  a  beginning  and 
are  not  prepared  for  partial  failures  during  that  beginning. 
If  spelling  is  necessary  before  we  can  attain  to  the  skill  of 
reading,  we  must  not  withhold  the  spelling-book  from  the 
learner;  and  we  ought  never  to  forget  the  law  to  which  I  have 
alluded  in  a  previous  part  of  this  work,  namely,  that  the 
advancement  of  mankind  is  made  possible,  among  other  things, 
by  the  fact  that  when  a  great  acquisition  is  once  made  on  the 
field  of  civilization,  succeeding  generations,  or  other  clusters 
of  men,  are  not  obliged  to  pass  through  all  the  stages  of 
painful  struggle,  or  tardy  experience,  which  may  have  been 
the  share  of  the  pioneering  nation. 

The  third  additional  remark  I  desire  to  make  is,  that  insti- 


is  no  nobility  in  the  continental  sense.  The  law  knows  of  peers,  hereditary  law- 
givers, but  it  does  not  know  even  the  word  nobleman.  The  peerage  is  connected 
with  primogeniture,  but  there  is  no  English  nobility  in  the  blood.  The  idea  of 
vitsalliance  has,  therefore,  never  obtained  in  England.  There  is  no  doubt  that 
the  little  disposition  of  the  English  shown  at  any  time  to  destroy  the  aristocracy 
is  in  a  great  measure  owing  to  this  fact,  as  doubtless  the  far  more  judicious  spirit 
of  the  English  peers  to  yield  to  the  people's  demands,  if  clearly  and  repeatedly 
pronounced,  has  contributed  much.  Mr.  Hallam  has  very  correct  remarks  on 
the  si,bii.ci  of  English  equality  of  civil  rights,  where  he  speaks  of  the  reign  of 
Henry  III. 


A^^D  SELF-  G  O  VERNMENT. 


349 


tutional  and  diffused  self-government  is  peculiarly  efficient  in 
breaking  those  shocks  which,  in  a  centralized  government, 
reach  the  farthest  corners  of  the  country',  and  are  frequently 
of  a  ruinous  tendency.  This  applies  not  only  to  the  sphere 
of  politics  proper,  but  to  all  social  spheres  which  more  or  less 
affect  the  political  life  of  a  nation.  There  are  two  similar 
cases  in  French  and  English  history  which  seem  to  illustrate/ 
this  fact  with  peculiar  force. 

Every  historiah  admits  that  the  well-known  and  infamous 
necklace  affair  contributed  to  hasten  on  the  French  revolution, 
by  degrading  the  queen,  and,  through  her,  royalty  itself,  in  the 
eye  of  France,  which  then  believed  in  her  culpable  participa- 
tion. England  was  obliged  to  behold  a  far  more  degrading 
exhibition — the  trial  of  Queen  Caroline,  the  consort  of  George 
IV.  There  was  no  surmise  about  the  matter.  Royalty  was 
exhibited  before  the  nation  minutely  in  the  fullest  blaze  of 
publicity,  and  mixed  up  with  an  amount  of  immundicity  the 
exact  parallel  to  which  it  is  difficult  to  find  in  history.  Every 
civilized  being  seemed  to  be  interested  in  the  trial.  The  por- 
trait of  the  queen  and  her  trial  were  printed  on  kerchiefs  and 
sold  all  over  the  continent.  The  trial,  too,  took  place  at  a 
somewhat  critical  period  in  England.  Yet  I  am  not  aware 
that  it  had  any  perceptible  effect  on  the  public  affairs  of  Eng- 
land. The  institutions  of  the  country  could  not  be  affected  by 
it,  any  more  than  high  walls  near  muddy  rivers  are  affected 
by  the  slime  of  the  tides.  But  royalty  on  the  continent,  try- 
ing at  that  very  time  to  revive  absolutism  founded  upon  divine 
right,'  was  damaged  by  the  people  thus  seeing  that  the  purple 
is  too  scant  to  cover  disgrace  and  vulgarity. 


'  It  was  the  time  when  Haller  wrote  his  Restoration  of  Political  Sciences,  in 
which  he  endeavors  to  excel  Filmer,  and  does  not  blush  to  hold  up  uncom- 
promising absolutism,  althcfUgh  a  native  of  Switzerland.  Having  secretly  become 
a  Catholic,  he  passed  into  the  service  of  the  Bourbons.  The  student  of  political 
science,  desirous  of  making  himself  acquainted  with  the  political  literature  of  the 
European  continent  of  this  period  in  its  whole  extent,  is  referred  to  a  German 
work  of  a  high  order,  Robert  von  Mohl's  Histoiy  and  Literature  of  the  Political 
Sciences,  3  vols.,  large  8vo,  Erlangen,  1855  to  1858,  (containing  2052  pages.) 


350 


ON  CIVIL  LIBERTY 


Let  an  American  imagine  what  would  be  the  inevitable 
consequences  of  local  or  sectional  errors  and  excitements,  of 
which  we  are  never  entirely  free,  if  we  did  not  live  under  a 
system  of  varied  institutional  self-government ;  each  shock 
would  be  felt  from  one  end  of  our  country  to  the  other  with 
unbroken  force.  Had  we  nothing  but  uninstitutional  Gallican 
universal  suffrage,  spreading  like  one  undivided  sea  over  the 
whole,  we  could  not  continue  to  be  a  free  people,  and  would 
hardly  be  a  united  people,  though  not  free. 

A  similar  remark  may  be  made  with  reference  to  that  period 
in  French  history  which  actually  obliges  the  historian  to  be  at 
least  as  familiar  with  the  long  list  of  royal  courtesans'  as  with 
the  prime  ministers.  The  effect  of  this  example  of  the  court 
has  been  most  disastrous  to  all  France.  The  courts  of  Eng- 
land under  Charles  II.  and  James  II.  were  no  better.  The 
conduct  of  George  I.  and  George  II.  added  coarseness  to 
incontinency.  The  English  nobility  followed  very  close  in 
the  wake  of  their  royal  masters ;  but  with  them  the  evil 
stopped.  The  people  of  England — England  herself — remained 
comparatively  untouched,  and,  while  the  court  plunged  into 
vices,  the  people  went  their  own  way,  rising  and  improving. 
Had  England  been  an  uninstitutional  country,  the  effect  must 
have  been  the  same  as  that  which  ruined  France. 

Another  observation  suggested  by  the  subject  which  we  are 
discussing  is,  that  a  wide-spread  and  penetrating  institutional 
self-government  has  the  same  concentrative  effect  upon  society 
which  a  careful  and  responsible  occupation  with  one's  own 
affairs  and  duties  has  upon  the  individual.  This  may  indeed 
be  counteracted  and  suspended  by  other  and  more  powerful 
circumstances ;  but  the  natural  effect  of  institutional  self- 
government  is,  I  believe,  such  as  I  have  just  indicated. 


The  comprehensive  erudition  and  liberal  judgment  oT  the  author,  as  well  as  the 
patient  research  in  the  literature  of  the  day  and  the  past  and  of  all  civilized 
countries,  make  this  work  a  storehouse  of  historical  and  critical  knowledge  con- 
cerning political  literature,  for  which  every  scholar  of  this  branch  must  feel 
dee]:ily  indebted  to  him. 

'   "he  very  etymology,  with  its  present  meaning,  is  significant. 


AND  SELF-GOVERNMENT. 


351 


A  large  and  active  nation,  which  therefore  instinctively 
seeks  a  political  field  of  action  for  its  energy,  and  which, 
nevertheless,  is  destitute  of  self-ruling  institutions,  will  gen- 
erally turn  its  attention  to  conquest  or  any  other  increase  of 
territory,  merely  for  the  sake  of  conquest  or  of  increased 
extent,  until  a  political  gluttony  is  produced  which  resembles 
the  immoderate  desire  of  some  farmers  for  more  land.  They 
neglect  the  intensive  improvement  of  their  farm,  and  are 
known  by  every  experienced  agriculturist  to  be  among  the 
poorest  of  their  class.  Expansion  may  become  desirable  or 
necessary ;  but  a  desire  of  extension  merely  for  the  sake  of 
extension  is  at  once  the  most  debilitating  fever  of  a  nation 
and  the  rudest  of  glories,  in  which  an  Attila  or  Timour  far 
excels  a  Fabius  or  a  Washington.  So  soon  as  a  nation  aban- 
dons the  intensive  improvement  of  its  institutions,  and  directs 
its  attention  solely  to  foreign  conquest,  it  outers  on  its  down- 
ward course,  and  loses  the  influence  which  otherwise  might 
have  been  its  share.  The  truest,  most  intense,  and  most  en- 
during influence  a  people  exercises  upon  others  is  through  its 
institutions  and  their  progressive  perfection.'  The  sword  does 
not  plough  deep. 

This  is  the  reason,  it  may  be  observed,  why  the  historian, 
the  more  truly  he  searches  for  the  real  history  of  nations,  and 
the  more  his  mind  acquires  philosophical  strength,  becomes 
the  more  attentive  to  the  political  life  manifested  by  the  in- 


'  There  are  persons  among  us  who  have  fallen  into  this  error;  and  it  will 
always  be  found  that  they  pioportionately  disregard  our  institutions,  or  are  not 
imbued  wiili  esteem  for  institutional  government.  I  lately  received  a  pamphlet 
m  which  the  author  wishes  for  a  confederacy  embracing  America  from  Greenland 
to  Cape  Horn.  "  Universal  governments"  were  the  dream  of  Henry  IV.,  and 
again  pressed  into  service  by  Napoleon.  I  am  not  able  to  answer  the  reader, 
why  that  confederacy  should  comprehend  America  only.  There  is  no  principle 
or  self-defining  idea  in  the  term  America.  America  is  a  name.  The  water 
which  surrounds  it  has  nothing  to  do  with  principles.  Water,  once  the  Disso- 
ciabile  Mare,  now  connects.  Polynesia  ought  to  be  added,  and  perhaps  Further 
Asia,  and  why  not  Hindostan  ?  Our  oath  of  allegiance  might  be  improved  by 
promising  to  be  faithful  to  the  United  States  et  cetera,  as  Archbishop  Laud's 
famous  oatL  bound  the  person  who  took  it  ujion  an  Et  Cetera. 


352 


ON  CIVIL  LIBERTY 


stitutions  of  a  people.  It  distinguishes  a  Niebuhr  from  a 
common  narrator  of  Rome's  many  battles/ 

On  the  other  hand,  we  may  observe  a  similar  effect  upon 
cabinets.  It  seems  to  me  one  of  the  best  effects  of  local  and 
national  self-government,  with  its  many  elementary  institu- 
tions and  a  national  representative  government,  that  diplo- 
macy ceases  to  form  the  engrossing  subject  of  statesmanship. 
Shrewd  as  English  diplomacy  has  often  proved,  the  history  of 
that  country,  in  the  eighteenth  century,  is  a  totally  different 
one  from  that  of  the  other  European  countries  in  the  same 
period.  It  seems  as  if  continental  statesmanship  sought  for 
objects  to  act  on,  in  foreign  parts,  in  concluding  alliances 
and  making  treaties ;  in  one  word,  as  if  diplomacy  had  been 
cultivated  for  the  sake  of  diplomacy.  Yet  nothing  is  surer  to 
lead  to  difficulties,  to  wars  and  suffering,  than  this  reversed 
state  of  things.^ 

Some  remarks  on  the  undue  influence  of  capitals  in  coun- 
tries void  of  institutions  would  find  an  appropriate  place  here ; 
but  they  are  deferred  until  we  shall  have  considered  some- 
what more  closely  the  peculiar  attributes  of  centralization,  the 
opposite  of  institutional  self-government. 

Patience,  united  with  energy,  is  as  much  an  element  of 
progress  and  efficient  action  in  public  concerns  as  in  private 
matters.  Mr.  Lamartine  has  feelingly  said  some  excellent 
truths  on  this  subject,  in  his  Counsellor  for  the  People;  but  it 
does  not  seem  possible  to  unite  the  two  in  popular  politics  and 


»  The  same  phenomenon  may  be  observed  in  the  more  philosophical  division 
of  history.  People  begin  to  divide  the  history  of  a  nation  by  the  monarchs,  or 
by  any  other  labelling.  When  they  penetrate  deeper,  they  divide  history  by  the 
rise  and  fall  of  institutions,  of  classes,  of  interests,  of  great  ideas.  To  divide  the 
history  of  England  by  George  I.  and  George  II.  is  about  as  philosophical  as  if 
a  geologist  were  to  color  a  chart,  not  according  to  the  great  layers  that  constitute 
the  earth,  but  by  indicating  where  the  people  walking  upon  it  wear  shoes  or 
sabots,  or  walk  barefooted. 

'  We  ought  to  compare  the  repeated  advice  of  the  greatest  of  Americans,  to 
beware  of  alliances,  with  the  contents  of  such  works  as  Raumer's  Diplomatic 
Dispatches  of  the  Last  Century.  It  is  for  this  reason  that  the  present  publicity  of 
diplomacy  has  such  vital  importance.  ^ 


AND  SELF-GOVERNMENT.  353 

in  the  service  of  liberty,  except  by  the  self-government  which 
we  are  contemplating.  Patience,  as  well  as  desiro  of  action, 
can  exist  separately  without  an  institutional  government,  but 
in  that  case  they  are  both  destructive  to  freedom.  Activity, 
without  institutions,  becomes  a  succession  of  unconnected 
efforts ;  patience,  without  institutions  that  constantly  incite 
by  self-government,  and  rouse  as  much  as  they  form  the  mind, 
becomes  mere  submission,  and  ends  in  Asiatic  resignation. 

It  would  seem,  also,  that  by  a  system  of  institutional  self- 
government  alone  the  advantage  can  be  obtained  of  which 
Aristotle  speaks,  when  he  says  that  the  psephisma  (the  par- 
ticular and  detailed  law)  ought  to  be  made  so  as  to  suit  the 
given  cases  by  the  Lesbian  canon,^  and  ought  to  be  applied  so 
as  to  fit  the  exact  demands. 

It  is  on  account  of  the  institutional  character  of  the  British 
polity  in  general  and  of  the  English  constitution  in  particular 
— on  account  of  the  supremacy  of  the  law  and  of  the  spirit 


'  The  Cyclopean  walls  in  Greece  and  Italy,  built  before  the  memory  even  of 
the  ancients,  and  many  of  which  still  stand  as  firm  as  if  raised  in  recent  times, 
have  their  strength  in  the  irregularity  of  the  component  stones,  and  the  close 
fittintr  of  one  to  the  other,  so  that  no  interstices  are  left  even  for  a  blade  of  grass  to 
grow.  An  irregular  polygonal  stone  was  placed  first;  sheets  of  lead  were  then 
closely  fitted  to  the  upper  and  lateral  surfaces.  When  taken  ofiF,  they  served  as 
the  patterns  according  to  which  the  stones  to  be  placed  next  were  hewn.  It  was 
this  sheet  and  this  mode  of  proceeding  which  was  called  the  Lesbian  canon  or 
rule,  while  the  canon  or  rule  which  the  architect  laid  down  alike  f(ir  all  stones 
of  an  intended  wall  was  called  a  general  canon.  See  On  the  Cyclopean  Walls, 
by  Forchhammer,  Kiel,  1847.  Now,  Aristotle  compares  the  general  law,  the 
nomas,  to  the  general  canon,  but  the  particular  law,  \.\i&  psephisma,  ought,  as  he 
says,  to  be  made  by  the  Lesbian  canon.  Ethica  ad  Nicomachum,  5,  14.  It  is 
inelegant,  I  readily  confess,  to  use  a  figure  which  it  is  necessary  to  explain,  but  I 
am  not  acquainted  with  any  process  in  modern  arts  similar  to  the  one  used  as  an 
illustration  by  the  great  philosopher,  except  the  forming  of  the  dentist's  gold  plate 
according  to  a  mould  taken  from  nature  itself.  I  naturally  preferred  the  simile 
of  the  philosopher,  even  with  an  explanatory  note,  to  the  unbidden  associations 
which  the  other  simile  carries  along  with  it.  Nor  would  I  withhold  from  my 
reader  the  pleasure  we  enjoy  when  a  figure  or  simile  is  presented  to  us  so  closely 
fitting  the  thought,  like  the  Lesbian  canon,  and  so  exact  that  itself  amounts  to  the 
enunciation  of  an  important  truth,  yi&W  formulated.  This  is  the  case  with  Aris- 
totle's figure. 

23 


354 


ON  CIVIL  LIBERTY 


of  self-government  which  in  a  high  degree  pervades  the  whole 
polity  and  society  of  that  country,  that,  long  ago,  I  did  not 
hesitate  to  call  England  a  royal  republic.^  Dr.  Arnold,  some 
five  years  later,  expressed  the  same  idea,  when  in  the  intro- 
duction to  his  Roman  History  he  styles  his  country  "a  kingly 
commonwealth,"  It  will  be  hardly  necessary  to  add  that  the 
British  commonwealth  is  in  many  respects  of  a  strongly  pa- 
trician character,  that  it  is  occasionally  aristocratic,  and  that 
the  Englishman  believes  one  of  the  excellencies  of  his  polity 
to  consist  in  the  fact  that  it  contains  in  the  monarch  an 
element  of  conservatism  apparently  high  above  the  contending 
elements  of  progress  and  popular  liberty.'^  What  advantages 
and  disadvantages  may  be  wound  up  in  this  portion  of  her 
constitution,  and  how  far  the  actual  position  of  Great  Britain, 
the  state  of  her  population  and  her  historical  development, 
may  make  it  necessary,  it  is  not  our  task  to  investigate,  any 
more  than  to  inquire  whether  the  steady  progress  of  Englanc 
has  not  been  toward  a  more  and  more  fully  developed  institu- 
tional self-government  and  virtual  republicanism,  or  whether 
the  absolutists  of  the  continent  may  be  right  when  they  main- 
tain that  England  is  no  bona  fide  monarchy,  and  by  her  unfor- 
tunate example  is  the  chief  cause  of  European  unrest,  by  which 
of  course  tlie  advocates  of  despotic  power  mean  the  popular 
longing  for  liberty. 

My  expression  has  been  called  "very  bold."     Whether  it 
be  so  or  not  is  of  little  importance.     I  have  given  my  reason 


^  In  my  Political  Ethics,  first  published  in  1838. 

"  I  do  not  know  that  this  opinion  was  ever  more  strikingly  symbolized  than 
lately,  when  Lord  John  Russell,  the  leader  of  the  administration  in  the  commons, 
moved  an  address  of  congratulation  to  the  queen  on  the  birth  of  a  prince,  and  Mr. 
Disraeli,  the  leader  of  the  opposition  in  the  same  branch,  seconded  the  motion, 
while  a  similar  motion  was  made  in  the  lords  by  Lord  Aberdeen,  the  premier  of 
the  administration,  seconded  by  the  Earl  of  Derby,  the  premier  of  the  lately 
ousted  administration,  and  very  bitter  opponent  to  the  present  ministry.  What 
the  queen  is,  in  this  respect,  in  England,  the  constitution,  or  rather  the  Union, 
is  in  the  United  States.  Our  feelings  of  loyalty  centre  in  these,  but  not  i,n  oui 
president,  any  more  than  an  Englishman's  loyalty  finds  a  symbol  in  his  prime 
ministei 


AND  SELF-GOVERNMENT.  355 

why  I  ha\  e  called  the  English  polity  thus,  and  I  may  be  per- 
mitted to  adfl  that  in  doing  so  I  meant  to  use  no  rhetorical 
expression,  but  philosophically  to  designate  an  idea,  the  truth 
of  which  has  been  ever  since  impressed  on  my  mind  more 
strongly  by  extended  study  and  the  ample  commentaries  with 
which  the  last  lustres  have  furnished  the  political  philosopher. 
The  opposite  idea  was  expressed  by  a  French  politician  of 
distinction,  when,  in  writing  favorably  of  Louis  Napoleon  after 
the  vote  which  succeeded  the  second  of  December,  but  before 
the  establishment  of  the  imperial  throne,  he  said :  "  universal 
suffrage  is  the  republic."  '  It  will  be  our  duty  to  consider  more 
in  detail  the  question,  whether  inorganic,  bare,  universal  suf- 
frage has  any  necessary  and  intrinsic  connection  Avith  liberty 
or  not,  and  to  inquire  into  the  consequences  to  which  unin- 
stitutional  suffrage  always  leads.  In  this  place  I  would  only 
observe  that  if  he  means  by  republic  a  polity  bearing  within  its 
bosom  civil  liberty,  the  dictum  is  radically  erroneous.  If  by 
republic,  however,  nothing  is  meant  but  a  kingless  state  of 
politics,  irrespective  of  liberty  or  the  good  government  of 
freemen,  it  is  not  worth  our  while  to  stop  for  an  inquiry. 
Nothing,  indeed,  is  more  directly  antagonistic  to  real  self- 
government  than  inorganic  universal  suffrage  spreading  over 
a  wide  dominion.  I  would  also  allude  once  more  to  the  fact 
that  universal  suffrage  is,  after  all,  a  modus,  and  not  the 
essence.  If,  however,  it  leads  to  the  opposite  of  self-govern- 
ment, we  have  no  more  right  to  call  it  "the  republic,"  or 
to  consider  it  a  form  of  liberty,  than  those  ancient  Germans 


'  Mr.  Emil  Giraidin,  who  has  been  referred  to  several  times.  He  is  an  un- 
reserved writer,  who  knows  how  to  express  his  ideas  distinctly,  and  who  is  a 
representative  of  very  large  numbers  of  his  countr}'men.  In  connection  with  the 
expression  of  Mr.  Girardin  given  in  the  text,  the  dictum  of  the  Emperor  Napo- 
leon III.  about  the  time  of  his  elevation  to  the  throne,  may  be  given.  He  said  : 
In  crowning  me,  France  crowns  herself.  The  reader  will  find  at  the  end  of  this 
work  a  similar  expression  of  the  emperor,  when  he  opened  the  restored  Louvre, 
namely,  that  France,  in  building  palaces  for  her  kings,  built  them  to  honor  her- 
self and  to  symbolize  her  unity.  Unfortunately,  Louis  XIV.  sorely  repented  on 
his  death -bed  his  passion  for  building,  and  expressed  it  in  warning  counsel  to 
Louis  XV. 


356  ON  CIVIL  LIBERTY 

had  a  right  to  be  proud  of  their  liberty,  whom  unsuccessful 
gaming  had  led  into  slavery,  if  Tacitus  reports  the  truth. 

According  to  the  French  writer,  the  Roman  republic  might 
be  said  to  have  continued  under  the  Caesars,  who  were  elected 
to  their  office,  and  an  elective  monarchy  would  present  itself 
as  an  acceptable  government,  while  in  reality  it  is  one  of  the 
worst.  For  it  possesses  nearly  all  the  evils  inherent  in  the 
monarchical  government,  without  its  advantages,  and  all  the 
disadvantages  of  a  republic,  vastly  increased,  without  its  ad- 
vantages. History,  I  think,  fully  bears  us  out  in  this  opinion, 
notwithstanding  one  authority — the  only  one  of  weight  I  can 
remember — to  the  contrary.  ^ 


*  Lord  Brougham,  in  his  Political  Philosophy,  speaks  in  terms  of  high  praise 
of  the  elective  government  of  the  former  Germanic  empire.  Native  and  con- 
temporary writers  have  not  done  so.  It  vi'as  only  after  the  expulsion  of  the 
French,  and  when  the  German  people  instinctively  longed  for  German  unity  and 
dignity,  that,  at  one  time,  a  poetic  longing  for  the  return  of  the  medieval  empire 
was  expressed  by  some.  If  there  be  any  German  left  who  still  desires  a  return 
to  the  elective  empire,  he  must  be  of  a  very  retrospective  character. 


AND  SELF-GOVERNMENT.  35^ 


CHAPTER    XXX. 

INSTITUTIONAL     GOVERNMENT     THE     ONLY    GOVERNMENT    WHICH 

PREVENTS    THE     GROWTH     OF    TOO    MUCH     POWER. LIBERTY, 

WEALTH,    AND    LONGEVITY    OF   STATES. 

Universal  suffrage  is  power — sweeping,  real  power — so 
vast,  that  even  its  semblance  bears  down  everything  before  it. 
Uninstitutional  universal  suffrage  may  be  fittingly  said  to  turn 
the  whole  popular  power  and  national  sovereignty — the  self- 
sufficient  source  of  all  derivative  power — into  an  executive, 
and  thus  fearfully  to  confound  sovereignty  with  absolute  power, 
absolutism  with  liberty. 

Yet  the  idea  of  all  government  implies  power,  while  that 
of  liberty  implies  check  and  protection.  It  is  the  necessary 
harmony  between  these  two  requisites  of  all  public  vitality 
and  civil  progress  which  constitutes  the  difficulty  of  establish- 
ing and  maintaining  liberty — a  difficulty  far  greater  than  that 
which  a  master-mind  has  declared  the  greatest,  namely,  the 
founding  of  a  new  government.' 


^  Machiavelli — tanto  nomini  nullum  par  elogium — says  in  his  Prince,  "But  in 
the  new  government  lies  the  greatest  difficulty."  This  depends  upon  circum- 
stances. He  undoubtedly  had  in  mind  the  difficulty  of  uniting  Italy,  or  rather 
of  eliminating  so  many  governments  and  establishing  one  Italian  state.  For 
there  has  been  no  noble  Italian,  since  the  times  when  Dante  called  his  own  Italy, 
Di  dolor  ostello,  that  does  not  yearn  for  the  union  of  his  noble  land,  and  look  for 
the  realization  of  his  hopes  as  fervently  as  he  believes  in  a  God.  Machiavelli 
was  one  of  the  foremost  among  these  true  Italians.  But  he  had  not  lived  through 
our  times.  There  are  times  when  the  people  throw  themselves  into  the  arms  of 
any  one  that  possibly  may  save  them  from  impending  or  imaginary  shipwreck,  or 
promises  to  do  so.  Wearied  people  will  take  a  stone  for  a  pillow,  and  no  per- 
sons deceive  themselves  so  readily  as  the  panic-stricken.  On  such  occasions  it 
is  easy  to  establish  a  new  government,  especially  if  cumbersome  conscience  is  set 
aside.  The  reverse  of  Machiavelli's  dictum  then  takes  place,  and  the  greatest 
difficulty  lies  in  maintaining  a  government.     This  applies  even  to  administra 


358 


ON  CIVIL  LIBERTY 


Power  is  necessary;  an  executive  cannot  be  dispensed  with; 
yet  all  power  has  a  tendency  to  increase,  and  to  clear  away 
opposition.  It  would  not  be  power  if  it  had  not  this  tendency. 
How  then  is  liberty  to  be  preserved?  A  new  power  may  be 
created  to  check  the  first,  like  the  Roman  tribune;  but  the 
newly-created  power  is  power,  and  how  is  this  in  turn  to  be 
checked  ?  Erecting  one  tier  of  power  over  the  other  affords 
no  remedy.  The  chief  power  may  thus  be  made  to  change  its 
name  or  place;  but  the  power,  with  all  its  attributes,  is  there. 

Nor  will  it  be  supposed  that  salvation  can  be  found  in  the 
mere  veto,  however  multiplied.  For  the  veto,  although  ap- 
pearing negative  with  reference  to  that  which  is  vetoed,  never- 
theless is  power  in  itself,  and  to  rest  civil  liberty  upon  a 
system  of  mere  vetoes  would  indeed  be  expecting  life,  action, 
growth,  and  that  which  is  positive,  from  a  system  of  nega- 
tivism. A  government  without  power  and  inherent  strength 
is,  like  aught  else  without  power,  useless  for  action.  Yet  action 
is  the  object  of  all  government.  The  single  Polish  nobleman 
who  possessed  the  rakosh  or  veto  had  a  very  positive  but  a 
very  injurious  power.  It  was  the  pervading  idea,  in  the 
middle  ages,  to  protect  by  the  requisition  of  unanimity  of 
votes  on  all  important  questions.  But,  on  the  one  hand,  this 
is  the  principle  which  belonged  to  the  disjunctive  state  of  the 
middle  ages,  not  to  our  broad  national  liberty ;  and,  on  the 
other  hand,  unanimity  does  not  of  itself  insure  protection  or 
liberty.     Tyranny  or  corruption  has  often  been  unanimous. 

The  only  way  of  meeting  the  difficulty  is  to  prevent  the 
overbearing  growth  of  any  power.  When  grown,  it  is  too 
late ;  and  this  cannot  be  done  by  putting  class  against  class, 
or  interest  against  interest.  One  of  these  must  be  stronger 
than  the  other,  and  become  the  absorbing  one.  Nor  is  the 
problem  we  have  to  solve,  discord.  It  is  harmony,  peace, 
united  yet  organic  action.  History  or  speculation  points  to 
no  other  solution  of  this  high  problem  of  man,  than  a  well- 


tions  and  ministries.     All  is  pleasant  sailing  at  first.     A  new  power  charms  like 
a  rising  sun ;  but  the  heat  of  noon  follows  upon  the  morning. 


AND  SELF-GOVERNMENT.  359 

grounded  and  ramified  system  of  institutions,  checking  and 
modifying  one  another,  strong  and  self-ruHng,  with  a  power 
hmited  by  the  ver}^  principle  of  self-government  within  each, 
yet  all  united  and  working  toward  one  common  end,  thus  pro- 
ducing a  general  government  of  a  co-operative  character,  and 
serving,  in  many  cases  in  which,  without  institutions,  interests 
would  jar  with  interests,  as  friction-rollers  do  in  machinery. 

The  institution  is  strong  within  its  bounds,  yet  not  feared, 
because  necessarily  bounded  in  its  action.  What  can  be  more 
powerful  than  the  king's  bench  in  England,  in  each  case  in 
which  it  acts  within  its  own  limits  ?  Now  older  than  five  hun- 
dred years,  it  has  repeatedly  stood  up  against  parliament  with 
success.  Yet  no  one  fears  that  its  power  will  invade  that  of 
other  institutions  ;  nor  did  the  people  of  the  state  of  New  York 
apprehend  that  the  court  of  appeals  might  become  an  invasive 
power,  when  in  its  own  legitimate  and  efficient  way  it  lately 
declared  the  Canal  Enlargement  Law,  which  had  been  passed 
by  a  great  majority,  unconstitutional,  and  consequently  null 
and  void. 

Seeking  for  liberty  merely  or  chiefly  in  a  vetitive  power  of 
each  class  or  circle,  interest  or  corporation,  upon  the  rest, 
as  has  been  often  proposed,  after  each  modern  revolution,^ 
would  simply  amount  to  dismembering,  instead  of  construct- 
ing. It  would  produce  a  multitudinous  antagonism,  instead 
of  a  vital  organism,  and  it  would  be  falling  back  into  the 
medieval  state  of  narrow  chartered  independencies.  We  can- 
not hope  for  liberty  in  a  pervading  negation,  but  must  find 
it  in  comprehensive  action.  All  that  is  good  or  great  is  cre- 
ative and  positive.  Negation  cannot  stand  for  itself,  or  impart 
life.  But  that  negation  which  is  necessary  to  check  and  re- 
frain is  found  in  the  self-government  of  many  and  vigorous 
institutions,  as  they  also  are  the  only  efficient  preventives  of 
the  undue  growth  of  power.  If  they  are  not  always  able  to 
hinder  it,  man  has  no  better  preventive.     When  in  the  seven- 


»  Harris,  in  his  Oceana,  St.  Just,  in  the  first   French  revolution,  and   many 
former  and  recent  writers,  might  be  mentioned. 


36o 


ON  CIVIL  LIBERTY 


teenth  century  the  Danes  threw  themselves  into  the  power  of 
the  king,  making  him  absolute,  in  order  to  protect  themselves 
against  baronial  oppression,  they  necessarily  created  a  power 
which  in  turn  became  oppressive.  The  English,  on  the  con- 
trary, broke  the  power  of  their  barons,  not  by  raising  the 
king,  but  by  increasing  self-government. 

We  find,  among  the  characteristic  distinctions  between 
modern  history  and  ancient,'  the  longevity  of  modern  states, 
contemporaneous  progress  of  wealth  or  culture  and  civil 
liberty,  and  the  national  state  as  contradistinguished  from  the 
ancient  city-state,  the  only  state  of  antiquity  in  which  liberty 
existed.  These  are  not  merely  facts  which  happen  to  present 
themselves  to  the  historian,  but  they  are  conditions  upon  which 
it  is  the  modern  problem  to  develop  liberty,  because  they  are 
requisites  for  modern  civilization,  and  civilization  is  the  com- 
prehensive aim  of  all  humanity. 

We  must  have  national  states  (and  not  city-states ;)  we  must 

*  These  differences  between  antiquity  and  modern  times,  all  of  which  are  more 
or  less  connected  with  Christianity  and  the  institution,  are : 

1.  That  in  antiquity  only  one  nation  flourished  at  a  time.  The  course  of  his- 
tory, therefore,  flows  in  a  narrow  channel,  and  the  historian  can  easily  arrange 
universal  ancient  history.  In  modern  periods,  many  nations  flourish  at  the 
same  time,  and  their  history  resembles  the  broad  Atlantic,  on  which  they  all 
freely  meet. 

2.  Ancient  states  are  short-lived ;  modern  states  have  a  far  greater  tenacity  of 
life. 

3.  Ancient  states,  when  once  declining,  were  irretrievably  lost.  Their  history 
is  that  of  a  rising  curve,  with  its  maximum  and  declension.  Modern  states  have 
frequently  shown  a  recuperative  power.  Compare  present  England  with  that  of 
Charles  II.,  France  as  it  is  with  the  times  of  Louis  XV. 

4.  Ancient  liberty  and  wealth  were  incompatible,  at  least  for  any  length  of 
time ;  modern  nations  may  grow  freer  while  they  are  growing  wealthy. 

5.  Ancient  liberty  ^welt  in  city-states  only ;  modern  liberty  requires  enlarged 
societies — nations. 

6.  Ancient  liberty  demanded  disregard  ot  individual  liberty ;  modern  liberty 
is  founded  upon  it. 

7.  The  ancients  had  no  international  law.  (Nor  have  the  Asiatics  now.  The 
incipiency  of  international  law  is,  indeed,  visible  with  all  tribes,  for  they  are 
men.  The  Romans  sent  heralds  to  declare  war,  and  the  Greek,  advised  to 
poison  his  arrows,  declines  doing  so,  "  for,"  Homer  makes  him  say,  '•  I  fear  t*>« 
gods  will  punish  me.") 


AND  SELF-GOVERNMENT.  36 1 

have   national   broadcast   liberty  (and  not  narrow  chartered 
liberty;)  we  must  have  increasing  wealth,  for  civilization  is 
expensive ;  we  must  have  liberty,  and  our  states  must  endure 
long,  to  perform  their  great  duties.     All  this  can  be  effected 
by   institutional    liberty   alone.      It    is    neither   affirmed   that 
longevity  alone  is  the  object,  nor  that  it  can  be  obtained  by 
institutions  alone.     Russia,  peculiarly  uninstitutional,  because 
it  unites  Asiatic  despotism  with  European  bureaucracy,  has 
lasted  through  long  periods,  even  though  we  may  consider 
the  late  celebration  of  its  millennial  existence  as  a  great  offi- 
cial license.     All  we  maintain  here  is,  that  longevity,  together 
with  progressive   liberty,  is  obtainable  only  by  institutional 
liberty.     England,  now  really  a  thousand  years  old,  presents 
the   great   spectacle   of  an  old  nation  advancing  steadily  in 
wealth  and  liberty.     She  is  far  richer  than  she  was  a  century 
ago,  and  her  government  is  of  a  far  more  popular  cast.     In 
ancient  times,  it  was  adopted  as  an  axiom  that  liberty  and 
wealth  are  incompatible.     Modern  writers,   down  to  a  very 
recent  period,  have  followed  the   ancients.      Declaimers  fre- 
quently do  so  to  this  day ;  but  they  show  that  they  do  not 
comprehend  modern  liberty  and  civilization.     Modern  in-door 
civilization,  with  all   her  schools  and  charities  and  comforts 
of  the  masses,  is  incalculably  dearer  than  ancient  out-door 
civilization.      Modern   civilization   requires   immense  produc- 
tion ;  it  is  highly  expensive.    Yet  Q*r  liberty  needs  civilization 
as  a  basis  and  a  prop ;  our  progressive  liberty  requires  pro- 
gressive   civilization,  consequently    progressive    wealth — not, 
indeed,  enormous  riches  in  the  hands  of  a  few.    Asia  possesses 
to  this  day  hoarded  treasures  in  greater  number  than  modern 
Europe  has  ever  known   them.'     We  stand   in  need  of  im- 
measurable wealth,  but  it  is  diffused,  widely-spread  and  widely- 
enjoyed  wealth,  necessary  for  widely-diffused  and  widely-en- 
joyed culture. 
To  last  long — to  last  with  liberty  and  wealth — is  the  great 


»  Indeed,  the  enormous  treasures  occasionally  met  with  in  Asia  are  indications 
of  her  comparative  poverty. 


362  ON  CIVIL  LIBERTY 

problem  to  be  solved  by  a  modern  state.  Our  destinies  differ 
from  that  of  brief  and  brilliant  Greece.  Let  us  derive  all 
the  benefit  from  Grecian  culture  and  civilization — from  that 
chosen  nation,  whose  intellectuality  and  £esthetics,  with  Chris- 
tian morality,  Roman  legality,  and  Teutonic  individuality  and 
independence,  form  the  main  elements  of  the  great  phenom- 
enon we  designate  by  the  term  modern  civilization,  without 
adopting  her  evils  and  errors,  even  as  we  adopt  her  sculpture 
without  that  religion  whose  very  errors  contributed  to  pro 
duce  it. 


AND  SELF-GOVERNMENT.  363 


CHAPTER   XXXI. 

INSECURITY   OF    UNINSTITUTIONAL  GOVERNMENTS. UNORCJANIZED 

INARTICULATED    POPULAR    POWER. 

The  insecurity  of  concentrated  governments  has  been  dis- 
cussed in  a  previous  part  of  this  work.  The  same  insecurity- 
exists  in  all  governments  that  are  not  of  a  strongly  institutional 
character.  Eastern  despotism  is  exposed  to  the  danger  of 
seraglio  conspiracies,  as  much  so  as  the  centralized  govern- 
ments of  the  European  continent  showed  their  insecurity  in 
the  year  1848.  They  tottered,  and  many  broke  to  pieces, 
although  there  was,  with  very  few  exceptions,  no  ardent  strug- 
gle, and  nothing  that  approached  to  a  civil  war.  To  an 
observer  at  a  distance,  it  almost  appeared  as  if  those  govern- 
ments could  be  shaken  by  the  loud  huzzaing  of  a  crowd. 
They  have,  indeed,  recovered ;  but  this  may  be  for  a  time 
only ;  nor  will  it  be  denied  that  the  lesson,  even  as  it  stands, 
is  a  pregnant  one. 

During  all  that  time  of  angry  turmoil,  England  and  the 
United  States  stood  firm.  The  government  of  the  latter  coun- 
try was  exposed  to  rude  shocks,  indeed,  at  the  same  period  ; 
but  her  institutional  character  protected  her.  England  has  had 
her  revolution  ;  every  monarchy  probably  must  pass  through 
such  a  period  of  violent  change  ere  civil  liberty  can  be  largely 
established  and  consciously  enjoyed  by  the  people — ere  govern- 
ment and  people  fairly  understand  one  another  on  the  common 
ground  of  liberty  and  self-government.  But  no  fact  seems 
to  be  so  striking  in  the  revolution  of  England  as  this,  that  all 
her  institutions  of  an  organic  character,  her  jury,  her  common 
law,  her  representative  legislature,  her  local  self-government, 
her  justice  of  the  peace,  her  sheriff,  her  coroner — all  survived 
domestic  war  and  despotism,  and,  having  done  so,  served  as 


3^4 


ON  CIVIL  LIBERTY 


the  basis  of  an  enlarged  liberty.  The  reason  of  this  broad 
fact  cannot  be  that  the  English  revolution  did  not  occur  at 
a  time  of  bold  philosophical  speculation  which  characterized 
the  age  of  the  French  revolution.  The  English  religionists 
of  the  seventeenth  century  were  as  bold  speculative  reasoners 
as  the  French  philosophers,  and  England's  religious  fanatics 
were  quite  as  fierce  enemies  of  private  property  and  society 
as  the  French  political  fanatics  were.  It  was,  in  my  opinion, 
pre-eminently  her  institutional  character  in  general,  or  the 
whole  system  of  institutions  and  the  degree  of  self-govern- 
ment contained  in  each,  that  saved  each  single  institution,  and 
enabled  England  to  weather  the  storm  when  she  was  exposed 
to  the  additional  great  danger  of  a  worthless  general  govern- 
ment after  the  restoration.  There  is  a  tenacity  of  life  and  a 
reproductive  principle  of  vitality  exhibited  in  the  whole 
seventeenth  century  of  British  history,  that  cannot  be  too 
attentively  examined  by  the  candid  statesmen  of  our  family 
of  nations. 

It  may  be  objected  to  my  remarks  that  Russia,  too,  has  re- 
mained untouched  by  the  attempted  revolutions  of  the  year 
1848,  although  her  government  is  a  very  centralized  one. 
Russia  has  in  some  respects  much  of  aTi  Asiatic  character,  and 
the  succession  of  her  monarchs  is  marked  by  an  almost  equal 
number  of  palace  conspiracies  and  imperial  murders  or  im- 
prisonments.' The  people,  on  the  other  hand,  have  not  yet 
been  affected  by  the  political  movements  of  our  race.  There 
is  in  politics,  as  in  all  spheres  of  humanity,  such  a  thing  as 
being  below  and  being  above  an  evil.  Many  persons  that  are 
free  from  skepticism  are  not  above  it,  but  the  dangerous  ques- 
tions have  never  yet  presented  themselves ;  and  many  nations 
remain  quiet  while  others  are  torn  by  civil  wars,  not  because 
they  have  reached  a  settled  state  above  revolution,  but  be- 
cause they  have  not  yet  arrived  at  the  period  of  contending 
elements. 


!  A  London  journal  said  some  years  ago,  with  great  bitterness,  yet  with  truth : 
A  Russian  czar  is  a  highly  assassinative  substance. 


AND  SELF-GOVERNMENT.  365 

Russia  may  be  said,  in  one  respect  at  least,  to  furnish  us 
with  the  extreme  opposite  to  self-government.  "  The  service," 
that  is,  public  service,  or  the  being  a  servant  of  the  imperial 
government,  has  been  raised  in  that  country  to  a  real  culte,  a 
sort  of  official  religion.  Any  infraction  of  justice,  any  hard- 
ship, any  complaint,  is  passed  over  with  a  shrug  of  the  shoulder 
and  the  words  "the  service."  The  term  Service  in  its  present 
Russian  adaptation  is  the  symbol  for  the  most  consistent  abso- 
lutism, the  most  passive  bureaucracy,  and  a  most  automaton- 
like government  set  in  motion  by  the  czar,  and  it  is  thus,  as  it 
was  said  before,  the  extreme  opposite  to  our  self-government. 

If  concentrated  governments  are  insecure,  mere  unorganized 
and  uninstitutional  popular  power  is  no  less  so,  and  neither 
such  power  nor  mere  popular  opposition  to  all  government 
is  a  guarantee  of  liberty.  The  first  may  be  the  reason  why 
all  the  Athenian  political  philosophers  of  mark  looked  from 
their  own  state  of  things,  during  and  after  the  Peloponnesian 
war,  with  evident  favor  upon  the  Lacedemonian  government 
Lacedaemon  was,  indeed,  no  home  for  individual  liberty;  but 
they  saw  in  Sparta  permanent  institutions,  and,  without  having 
arrived  at  a  perfectly  clear  distinction  between  an  institutional 
government  and  one  of  a  fluctuating  absolute  market  majority, 
they  may  have  perceived,  more  or  less  instinctively,  that  neither 
permanency  nor  safety  is  possible  without  an  institutional 
system.  They  must  have  observed  that  there  was  no  individual 
liberty  in  Sparta;  but  her  institutional  character  may  have 
struck  them,  and  the  contrast  may  have  lent  to  that  govern- 
ment the  appearance  of  substantial  value  which  it  did  not 
possess  in  reality.  It  seems  otherwise  difficult  to  explain  why 
the  most  reflecting  should  have  preferred  a  Lacedaemon  to  an 
Athens,  even  if  we  take  into  account  the  general  view  of  the 
ancients,  that  individuality  must  be  sacrificed  to  the  state — a 
view  of  which  I  have  spoken  at  the  beginning  of  this  work. 

As  to  the  second  position,  that  the  guarantee  of  liberty  can- 
not be  sought  for  in  mere  opposition  to  government  or  in  a 
mere  negation  of  power,  it  is  only  necessary  to  reflect  that  in 
such  a  state  of  things  one  of  three  evils  must  necessarily  hap- 


366  ON  CIVIL  LIBERTY 

pen.  Either  the  people  are  united  and  succeed  in  enfeebling 
or  destroying  the  government,  in  which  case  again  the  new 
government  possesses  the  w^hole  sweeping  power,  and  of  course 
is  in  turn  a  negation  of  liberty ;  thus  substituting  absolutism 
for  absolutism.  Or  the  people  are  not  united,  do  not  succeed, 
and  leave  the  government  more  powerful  and  despotic  than 
before.  Or  a  state  of  affairs  is  brought  about  in  which  all 
power  is  destroyed — political  asthenia.  It  is  a  state  of  polit- 
ical disintegration,  leading  necessarily  to  general  ruin,  and 
preparing  the  way  for  a  new,  generally  a  foreign,  power,  which 
then  rears  something  fresh  upon  the  ruins  of  the  past — fabrics 
that  are  cemented  with  blood  and  tears. 

There  is  no  other  way  to  escape  from  the  appalling  dilemma 
than  to  unite  the  people  and  government  into  one  living  organ- 
ism ;  and  this  can  only  be  done  by  a  wadely-ramified  system 
of  sound  institutions,  instinct  with  self-government. 

It  is  not  maintained  that  history  does  not  furnish  us  with 
instances  of  national  conditions  in  which  nothing  else  remained 
possible  but  a  general  rising  against  a  government  that  had 
become  isolated  from  the  people;  but  nothing  is  gained  if  the 
new  state  of  things  is  not  founded  upon  institutions.  This 
is,  indeed,  a  difficult  task ;  at  times  it  would  seem  impossible. 
If  so,  the  destruction  of  the  whole  is  decreed ;  and  its  accom- 
plishment adds  another  lesson  to  the  many  stored  up  in  the 
book  of  histor}%  that  those  nations  who  neglect  to  provide  for 
institutions,  and  to  allow^  them  freely  to  grow,  are  walking  the 
path  of  political  ruin. 

We  are  now  fully  able  to  judge  how  utterly  mistaken  those 
are  who  endeavor  to  press  the  opinion  upon  the  people  that 
"  there  are  but  two  principles  between  which  civilized  men 
have  to  choose — Divine  Right  and  Democratic  Might."  The 
one  is  as  ungodly  as  the  other.  Neither  is  founded  in  justice; 
neither  admits  of  liberty ;  both  rest  on  the  principle  of  abso- 
lutism. Both  are  theories  fabricated  by  despotism,  false  in 
logic,  unhallowed  in  practice,  and  ruinous  in  their  progress. 

Allusion  has  been  made  before  to  the  common  mistake 
of  those  men  who  are  not  bred  in  civil  liberty,  and  are  un- 


AND  SELF-GOVERNMENT.  367 

acquainted  with  the  appliances  of  self-government,  that  they 
believe  that  popular  power  alone,  uniform,  sweeping,  and  in- 
organic, constitutes  liberty,  or  is  all  that  is  necessary  to  insure 
it.  It  is  doubtless  this  kind  of  popular  power  which  is  gen- 
erally called  democracy  in  France  and  other  countries  of  the 
continent.  It  confounds,  as  we  have  seen,  things  entirely 
distinct  in  their  nature.  Power  is  not  liberty.  Power  is  neces- 
sary for  protection,  and  liberty  consists  in  a  great  measure  in 
the  protection  of  certain  rights  and  certain  institutions ;  never- 
theless, power  is  not  liberty,  and  because  it  is  power  it  requires 
limitation,  or,  as  I  have  stated,  it  is  necessary  to  prevent  the 
generation  of  dangerous  power.  Of  all  power,  however,  popu- 
lar power,  if  by  this  term  we  designate  the  uninstitutional 
sway  of  the  multitude,  is  at  once  the  most  direct,  because  not 
borrowed  nor  theoretical,  and  the  most  deceptive,  because  in 
reality  it  is  necessarily  led  or  handled  by  a  few  or  by  one. 
The  ancients  knew  this  perfectly  well,  and  repeatedly  treated 
of  the  fact ;  but  it  is  not  essential  that  the  agora,  the  bodily 
assembled  multitude,  have  unlimited  and  uninstitutional  power. 
The  same  defects  exist  and  the  same  results  are  produced 
where,  so  to  speak,  the  market  extends  over  a  whole  country, 
and  where  all  liberty  is  believed  to  consist  in  one  solitary 
formula — universal  suffrage.  Many  effects  of  the  latter  are, 
indeed,  more  serious.^ 

No  evolution  of  public  opinion,  no  debate,  no  gradual  for- 
mation, takes  place.  Some  few  prepare  the  measures,  and  Yes 
or  No  is  all  that  can  be  asked  or  voted. 

Whenever  we  speak  of  the  power  of  the  people,  in  an  un- 
organized state,  we  cannot  mean  anything  else  but  the  power 
of  the  majority  ;  and  where  liberty  is  believed  to  consist  in  the 


*  Nowhere,  I  believe,  can  the  views  of  a  large  class  of  Frenchmen  on  this 
subject  be  found  more  distinctly  enounced  than  in  the  different  works  of  Mr. 
Louis  Blanc.  They  are  many,  and,  in  my  opinion,  as  may  be  supposed,  often 
very  visionary ;  but  Mr.  Blanc  is  the  spirited  representative  of  that  French  school 
which  believes  that  liberty  is  power,  that  the  ouvriers  are  the  people,  that  wealth 
consists  in  the  largest  possible  amount  of  currency,  and  money  is  a  deception, 
and  that  communism  is  the  most  perfect  political  ijhase  of  humanity. 


368 


ON  CIVIL  LIBERTY 


unlimited  power  of  the  people,  the  inevitable  practical  result 
is  neither  more  nor  less  than  the  absolutism  of  the  majority 
and  the  total  want  of  protection  of  the  minority. 

As,  however,  this  uninstitutional  multitude  has  no  organism, 
it  is,  as  I  have  stated,  necessarily  led  by  a  few  or  one,  and  thus 
we  meet  in  history  with  the  invariable  result,  that  virtually 
one  man  rules  where  absolute  power  of  the  people  is  believed 
to  exist.  After  a  short  interval,  that  one  person  openly  as- 
sumes all  power,  sometimes  observing  certain  forms  by  which 
the  power  of  the  people  is  believed  to  be  transferred  to  him. 
The  people  have  already  been  familiar  with  the  idea  of  abso- 
lutism— they  have  been  accustomed  to  believe  that,  wherever 
the  public  power  resides,  it  is  absolute  and  complete,  so  that  it 
does  not  appear  strange  to  them  that  the  new  monarch  should 
possess  the  unlimited  power  which  actually  resided  in  the 
people  or  was  considered  to  have  belonged  to  them.  There 
is  but  one  step  from  the  "peitple  toiit-pitissavt^'  if  indeed  it 
amounts  to  a  step,  to  an  emperor  tout-puissant.' 

It  is  a  notable  fact,  which,  so  far  as  I  know  history,  has  no 
important  exception,  that  in  all  times  of  civil  commotion  in 
which  two  vast  parties  are  arrayed  against  each  other,  the 
anti-institutional  masses,  which  arc  erroneously  yet  generally 
called  the  people,  are  monarchical,  or  in  favor  of  trusting 
power  into  the  hands  of  one  man.  All  dictators  have  become 
such  by  popular  power,  if  the  commotion  tended  to  a  general 


»  This,  it  will  be  observed,  is  very  different  from  the  English  maxim,  the  par- 
liament is  omnipotent.  Unguarded  and  extravagant  as  it  is,  it  only  means  that 
parliament  has  the  supreme  power.  But  parliament  itself  is  a  vast  institution, 
and  part  and  parcel  of  a  still  vaster  institutional  system,  which  is  pervaded  by  the 
principle  of  self-government.  Parliament  has  often  found  that  it  is  not  omnipo- 
tent when  it  has  attempted  to  break  a  lance  with  the  common  law.  It  is  as 
unguarded  a  maxim  as  that  the  king  can  do  no  wrong,  which  is  true  only  in  a 
limiting  sense,  namely,  that  because  he  can  do  no  wrong,  some  one  else  must  be 
answerable  for  every  act  of  his.  Besides,  there  is  the  marginal  note  of  James 
II.  appended  to  this  maxim,  which  never  has  been  understood  to  mean  what  the 
ancient  French  maxim  meant:  In  the  presence  of  the  king,  the  laws  are  silent; 
or  what  was  meant  by  the  famous  "  bed  of  justice,"  namely,  that  the  personal 
presence  of  the  monarch  silenced  all  opposition,  and  was  sufficient  to  ordain 
anything  he  pleased. 


AND  SELF-GOVERNMENT.  ^  369 

change  of  government.  It  was  the  case  in  Rome  when  Caesar 
ruled.  The  party  in  the  Netherlands  which  clamored  for  the 
return  of  the  Stadtholder  against  that  great  citizen  De  Witt, 
and  was  bent  on  giving  the  largest  extent  of  hereditary  power 
to  the  house  of  Orange,  was  the  popular  party.  Cromwell  was 
mainly  supported  by  the  anti-institutional  army  and  its  ad- 
herents. We  may  go  farther.  The  rise  of  the  modern  prin- 
cipate,  that  is,  the  vast  increase  of  the  power  of  the  prince 
and  the  breaking  down  of  the  baronial  power,  was  everywhere 
effected  by  the  help  of  the  people.  We  have  not  here  to  in- 
quire, whether  in  many  of  these  struggles  the  people  did  not 
consciously  or  instinctively  support  the  prince  or  leader 
against  his  opponents,  because  the  ancient  institutions  had 
become  oppressive.  At  present,  it  is  the  fact  alone  which  we 
have  to  consider. 

Probably  it  was  this  fact,  together  with  some  other  reasons, 
which  caused  Mr.  Proudhon,  the  socialist,  to  utter  the  remark- 
able sentence  that  "  no  one  is  less  democratic  than  the  people." 

The  fact  is  certain  that,  merely  because  supreme  power  has 
been  given  by  the  people,  or  is  pretended  to  have  been  con- 
ferred by  the  people,  liberty  is  far  from  being  insured.  On 
the  contrary,  inasmuch  as  this  theory  rests  on  the  theory  of 
popular  absolutism,  it  is  invariably  hostile  to  liberty,  and,  gen- 
erally, forms  the  foundation  of  the  most  stringent  and  odious 
despotism.  To  use  the  words  of  Burke:  "  Law  and  arbitrary 
power  are  in  eternal  enmity.  .  .  .  It  is  a  contradiction  in 
terms,  it  is  blasphemy  in  religion,  it  is  wickedness  in  politics,  to 
say  that  any  man  can  have  arbitrary  power.  .  .  We  may  bite 
our  chains  if  we  will ;  but  we  shall  be  made  to  know  ourselves 
and  be  taught  that  man  is  born  to  be  governed  by  law ;  and  he 
that  will  substitute  will  in  the  place  of  it  is  an  enemy  to  God."  ' 

I  add  the  words  of  one  still  greater,  the  elder  Pitt,  and  be  it 
remembered  that  he  uttered  them  when  he  was  an  old  man. 

"  Power,"  said  he,  "without  right  is  the  most  detestable 
object  that  can  be  offered  to  the  human  imagination ;  it  is  not 


»  Mr.  Burke,  in  1788. 
24 


370 


ON  CIVIL  LIBERTY 


only  pernicious  to  those  whom  it  subjects,  but  works  its  own 
destruction.  Res  detestabilis  et  caduca.  Under  the  pretence 
of  declaring  law,  the  commons  have  made  a  law,  a  law  for 
their  own  case,  and  have  united  in  the  same  persons  the  offices 
of  legislator,  and  party,  and  judge."'  Frederic  the  Great  of 
Prussia  perceived  this  clearly,  for  he  said  "he  could  very 
well  understand  how  one  man  might  feel  a  desire  to  make  his 
will  the  law  of  others,  but  why  thirty  thousand  or  thirty 
millions  should  submit  to  it  he  could  not  understand."  This 
is  the  saying  of  a  monarch  who  probably  knew  or  suspected  as 
little  of  an  institutional  self-government  as  any  one,  and  who 
continually  complained  of  the  power  of  parliament  in  chang- 
ing ministers,  when  England  was  his  ally.^  But  was  he  sin- 
cere when  he  wrote  those  words  ?  Was  he  still  in  his  period 
of  philosophic  sentiment?  Did  he  really  not  see  why  this 
apparent  transfer  of  power  so  often  happens,  or  did  he  utter 
them  merely  as  something  piquant  ? 

By  whatever  process  this  vast  popular  power  is  transferred 
or  pretended  to  be  transferred — for  we  must  needs  always  add 
this  qualification — is  of  no  manner  of  importance  with  refer- 
ence to  liberty.  Immolation  brings  death,  though  it  should 
be  self-immolation ;  and  of  the  two  species  of  political  slaver}', 
that  is  probably  the  worst  which  boasts  of  having  originated 
from  free  self-submission,  such  as  Hobbes  believed  to  have 
been  the  origin  of  all  monarchy,  and  of  which  recent  history 
has  furnished  an  apparent  frightful  instance. 


'  He  spoke  of  Wilkes's  expulsion. 

=*  Raiimer  gives  the  dispatches  from  Mitchell,  the  English  minister  near  the 
court  of  Frederic.  The  minister  reports  many  complaints  of  the  king,  of  this 
sort.  But  Frederic  is  not  the  only  one  who  thus  complained.  General  Walsh, 
that  native  Frenchman,  who  became  minister  of  Spain,  did  the  same.  See 
Coxe's  Memoirs,  mentioned  before.  So  when  Russian  statesmen  desire  to  show 
the  superiority  of  their  government,  they  never  fail  to  dwell  on  the  low  position  of 
an  English  minister,  inasmuch  as  he  depends  upon  a  parliamentary  majority,  or, 
as  an  English  minister  expressed  it,  must  be  the  minister  of  public  opinion.  See 
Mr.  Urquhart's  Collection.  I  believe  it  will  always  be  found  that,  where  abso- 
lute governments  come  in  contact  with  those  of  freemen  the  former  complain 
of  the  instability  of  the  latter.    They  consider  a  change  of  ministry  a  revolution 


AND  SELF-GOVERNMENT.  37 1 

Nothing  is  easier  than  to  show  to  an  American  or  English 
reader  that  the  origin  of  power  has  of  itself  no  necessary  con- 
nection with  Hberty.  What  American  would  believe  that  a 
particle  of  liberty  were  left  him,  if  his  country  were  denuded 
of  every  institution,  federal  or  in  the  states,  except  of  the  presi- 
dent of  the  whole,  though  he  alone  were  left  to  be  elected 
every  four  years  by  the  sweeping  majority  of  the  entire  coun- 
try, from  New  York  to  San  Francisco  ?  Or  what  English- 
man would  continue  to  boast  of  self-government,  if  a  civil 
hurricane  were  to  sweep  from  his  country  every  institution, 
common  law  and  all,  except  parliament,  as  an  "omnipotent" 
body  indeed  ? 

The  opposite  of  what  we  have  called  institutional  self-gov- 
ernment is  that  liberty  which  Rousseau  conceived  of,  when, 
in  his  Social  Contract,  he  not  only  assigns  all  power  to  the 
majority,  and  almost  teaches  what  might  be  called  a  divine 
right  of  the  majority,  but  declares  himself  against  all  division. 
He  shows  a  bitter  animosity  to  the  representative  system. 
He  seeks,  unconsciously  to  himself,  for  a  legitimate  source  of 
public  force,  when  he  thinks  he  lays  a  foundation  for  liberty. 
In  this  he  may  be  said  to  be  original,  at  least  in  the  idea  of  the 
permanent  action  of  the  social  contract,  or  of  the  sovereignty 
not  only  residing  in  the  people,  but  continuing  to  act  directly 
and  without  checking  institutions.  For  the  rest,  he  only  car- 
ried out  the  old  French  idea  of  unity  of  power,  of  centraliza- 
tion, which  appeared  to  the  French,  long  before  him,  the 
summumbonum — not  only  in  politics,  but  in  all  other  spheres. 
The  works  of  the  great  Bossuet  show  this  pervading  idea,  in 
the  sphere  of  theology ;  and  numerous  proofs  have  been  given 
in  the  course  of  this  work,  that  the  principle  of  uncompro- 
mising unity  was  distinctly  acknowledged  and  almost  idolized 
by  nearly  all  the  leading  statesmen  of  France  from  Richelieu, 
through  the  first  revolution,  and  continues  to  be  so  down  to 
the    present    day.'     No  one  can   understand  the    history  of 


'  One  of  the  past  statesmen  of  France,  and  renowned  as  a  pulilicist,  said  to 
me,  in  1S51,  when  we  discoursed  on  the  remarkable  extinction  of  former  French 


372 


ON  CIVIL  LIBERTY 


France  who  does  not  remember  the  ardor  for  uninstitutional 
unity  of  power,  and  what  is  intimately  connected  with  it,  the 
idea  that  this  all-pervading  and  uncompromising  power  must 
do  and  provide  for  everything — the  extinction  of  self-reliance. 
The  socialists  do  not  differ  from  the  imperialists ;  on  the  con- 
trary, society  is  with  them  a  unit  in  which  the  individual  is 
lost  sight  of,  even  in  marriage  and  property. 

Rousseau  insists  upon  an  inarticulated,  unorganized,  unin- 
stitutional majority.  It  is  a  view  which  is  shared  by  many 
millions  of  people  on  the  European  continent,  and  has  deeply 
affected  all  the  late  and  unsuccessful  attempts  at  conquering 
liberty.  Rousseau  wrote  in  a  captivating  style,  and  almost 
always  plausibly,  very  rarely  profoundly,  often  with  impas- 
sioned fervor.  Plausibility,  however,  generally  indicates  a 
fallacy,  in  all  the  higher  spheres  of  thought  and  action ;  still 
it  is  that  which  is  popular  with  those  who  have  had  no  ex- 
perience to  guide  them  ;  and  since  the  theory  of  Rousseau  has 
had  so  decided  an  influence  in  France,  and  since  no  one  can 
understand  the  recent  history  of  our  race  without  having 
studied  the  Social  Contract,^  that  theory,  for  the  sake  of 
brevity,  may  be  called  Rousseauism. 


royalty :  "  There  is  but  one  thing  to  which  all  Frenchmen  cling  with  enthusiasm, 
almost  with  fanaticism,  and  that  is  absolute  unity."  Those  statesmen  who  have 
not  unconditionally  joined  this  sentiment,  such  as  Mr.  Guizot,  are  considered 
unnational. 

'  The  Contrat  Social  was  the  bible  of  the  most  advanced  convention  men. 
Robespierre  read  it  daily,  and  the  influence  of  that  book  can  be  traced  through- 
out the  revolution.  Its  ideas,  its  simplicity,  and  its  sentimentality  had  all  their 
effects.  Indeed,  we  may  say  that  two  books  had  a  peculiar  influence  in  the  French 
revolution,  Rousseau's  Social  Contract  and  Plutarch's  Lives,  however  signally 
they  difi'er  in  character.  The  translation  of  Plutarch  by  Amyot  in  the  sixteenth 
centuiy — it  was  the  period  of  Les  Cents  Contre  Un — and  subsequent  ones,  had 
a  great  effect  upon  the  ideas  of  a  certain  class  of  reflecting  Frenchmen.  We 
can  trace  this  down  to  the  revolution,  and  during  this  struggle  we  find  with  a 
number  of  the  leading  men  a.turn  of  ideas,  a  conception  of  republicanism  formed 
upon  their  view  of  antiquity,  and  a  stoicism,  which  may  be  fitly  called  Plutatchism. 
It  is  an  element  in  that  great  event.  It  showed  itself  especially  with  the  Bris- 
sotists,  the  Girondists,  and  noble  Charlotte  Corday  was  imbued  with  it.  A  very 
instructive  paper  might  be  written  on  the  influence  of  Plutarch  on  the  political 
sentiment  of  the  French  ever  since  that  first  translation. 


AND  SELF-GOVERNMENT.  373 

We  return  once  more  to  that  despotism  which  is  founded 
upon  pre-existing  popular  absolutism.  The  processes  by 
which  the  transition  is  effected  are  various.  The  appointment 
may  deceptively  remain  in  the  hands  of  the  majority,  as  was 
the  case  when  the  president  of  the  French  republic  was  appar- 
'ently  elected  for  ten  years,  after  the  second  of  December ;  or 
the  praetorians  may  appoint  the  Csesar;  or  there  may  be 
apparent  or  real  acclamation  for  real  or  pretended  services ;  or 
the  emperor  may  be  appointed  by  auction,  as  in  the  case  of 
the  emperor  Didius;  or  the  process  may  be  a  mixed  one. 
The  process  is  of  no  importance;  the  facts  are  simply  these — 
the  power  thus  acquired  is  despotic,  and  hostile  to  self-govern- 
ment; the  power  is  claimed  on  the  ground  of  absolute  popular 
power ;  and  it  becomes  the  more  uncompromising  because  it  is 
claimed  on  the  ground  of  popular  power. 


374 


ON  CIVIL  LIBERTY 


CHAPTER   XXXII. 

IMPERATORIAL  SOVEREIGNTV. 

The  Caesars  of  the  first  centuries  claimed  their  power  as 
bestowed  upon  them  by  the  people,  and  went  even  so  far  as 
to  assume  the  praetorians,  with  an  accommodating  and  intimi- 
dated senate,  as  the  representatives,  for  the  time,  of  the  people. 
The  Caesars  never  rested  their  power  upon  divine  right,  nor 
did  they  boldly  adopt  the  Asiatic  principle  in  all  its  nakedness, 
that  power — the  sword,  the  bow-string,  the  mere  possession 
of  power  —  is  the  only  foundation  of  the  right  to  wield  it. 
The  majestas  populi  had  been  transferred  to  the  emperor.^ 
Such  was  their  theory.  Julius,  the  first  of  the  Caesars,  made 
himself  sole  ruler  by  the  popular  element,  against  the  insti- 
tutions of  the  country. 

If  it  be  observed  here  that  these  institutions  had  become 
effete,  that  the  Roman  city-governn>ent  was  impracticable  for 
an  extensive  empire,  and  that  the  civil  wars  had  proved  how 
incompatible  the  institutions  of  Rome  had  become  with  the 
actual  state  of  the  people,  it  will  be  allowed — not  to  consider 
the  common  fact  that  governments  or  leaders  first  do  every- 


»  The  idea  of  the  populus  vanished  only  at  a  late  period  from  the  Roman 
mind;  that  of  liberty  had  passed  away  long  before.  Fronto,in  a  letter  to  Marcus 
Aurelius,  (when  the  prince  was  Csesar,)  mentions  the  applause  which  he  had 
received  from  the  audience  for  some  oration  which  he  had  delivered,  and  then 
continues  thus :  "  Quorsum  hoc  retuli  ?  uti  te,  Domine,  ita  compares,  ubi  quid  in 
ccetu  hominum  recitabis,  ut  scias  auribus  serviendum :  plane  non  ubique  et  omni 
modo,  attamen  nonnunquam  et  aliquando.  Quod  ubi  facies,  simile  facere  te  repu- 
lato,  atque  illud  facitis,  ubi  eos  qui  bestias  strenue  initri^cmnt,  poftilo  posttdante 
ornatis  aut  manumittitis,  nocentes  etiam  homines  aut  scelere  datnnatos,  sed  populo 
postulante  conceditis.  Ubique  igitiir  populus  do7ninatiir  et  prcepoUet.  Igitur  ut 
populo  gratum  erit,  ita  facies  atque  ita  dices." — Epist.  ad  Marc.  Cses.,  lib.  i. 
epist.  I. 


AND  SELF-GOVERNMENT.  375 

thing  to  corrupt  the  people  or  plunge  them  into  civil  wars, 
and  then,  "taking  advantage  of  their  own  wrong,"  use  the 
corruption  and  bloodshed  as  a  proof  of  the  necessity  to  upset 
the  government' — it  will  be  allowed,  I  say,  that  at  any  rate 
Caesar  did  not  establish  liberty,  or  claim  to  be  the  leader  of  a 
free  state,  and  that  he  made  his  appearance  at  the  close  of  a 
long  period  of  freedom,  marking  the  beginning  of  the  most 
fearful  decadence  which  stands  on  record ;  and  that,  unfortu- 
nately, the  rulers  vested  with  this  imperatorial  sovereignty^ 
never  prepare  a  better  state  of  things  with  reference  to  civil 
dignity  and  healthful  self-government.  They  may  establish 
peace  and  police;  they  may  silence  civil  war,  but  they  also 
destroy  those  germs  from  which  liberty  might  sprout  forth 
at  a  future  period.  However  long  Napoleon  I.  might  have 
reigned,  his  whole  path  must  have  led  him  farther  astray  from 
that  of  an  Alfred,  who  allowed  self-government  to  take  root, 
and  respected  it  where  he  found  it.  We  can  never  arrive  at 
the  top  of  a  steeple  by  descending  deeper  into  a  pit. 


*  Not  unlike  the  conduct  of  the  powers  surrounding  Poland,  before  they  had 
sufficiently  prepared  her  partition.  The  government  of  Poland  was  certainly  a 
very  defective  one,  but  it  was  the  climax  of  historical  iniquity  in  Russia,  Austria, 
and  Prussia  to  declare,  after  having  used  every  sinister  means  to  embroil  the 
Polish  affairs  and  stir  up  faction,  that  the  Poles  were  unfit  to  be  a  nation,  and 
as  neighbors  too  troublesome. 

'  The  idea  which  I  have  to  express  would  have  prompted  me,  and  the  Latin 
word  Csesareus  would  have  authorized  me,  to  use  the  term  Cesarean  Sovereignty, 
It  is  unquestionably  preferable  to  imperatorial  sovereignty,  except  that  the  Eng- 
lish term  Caesarean  has  acquired  a  peculiar  and  distinct  meaning,  which  might 
even  have  suggested  the  idea  of  a  mordant  pun.  I  have,  therefore,  given  up 
this  term,  although  I  had  always  used  it  in  my  lectures.  It  will  be  observed  that 
I  use  the  term  sovereignty  in  this  case  with  a  meaning  which  corresponds  to  the 
sense  in  which  the  word  sovereign  continues  to  be  used  by  many,  designating  a 
crowned  ruler.  I  hope  no  reader  will  consider  me  so  ignorant  of  history  and 
political  philosophy,  as  to  think  me  capable  of  believing  in  the  real  sovereignty 
of  an  individual.  If  sovereignty  means  the  self-sufficient  primordial  power  of 
society,  from  which  all  other  powers  are  derived — and  unless  it  mean  this  we  do 
not  stand  in  need  of  the  tenn — it  is  clear  that  no  individual  ever  possessed  or 
can  possess  it.  On  the  other  hand,  it  is  not  to  be  confounded  with  absolute 
power.  My  views  on  this  important  subject  have  been  given  at  length  in  my 
Political  Ethics,  as  I  have  said  before. 


17^ 


ON  CIVIL  LIBERTY 


Whatever  Csesar's  greatness  may  have  been,  he  did  net,  at 
any  rate,  usher  in  a  new  and  prosperous  era,  either  of  liberty 
or  popular  grandeur.  What  is  the  Roman  empire  after  Caesar  ? 
Count  the  good  rulers,  and  weigh  them  against  the  unutterable 
wretchedness  resulting  from  the  worst  of  all  combinations — 
of  lust  of  power,  voluptuousness,  avarice,  and  cruelty — and 
forming  a  stream  of  increasing  demoralization,  which  gradually 
swept  down  in  its  course  everything  noble  that  had  remained 
of  better  times. 

The  Roman  empire  did,  undoubtedly,  much  good,  by  spread- 
ing institutions  which  adhered  to  it  in  spite  of  itself,  as  seeds 
adhere  to  birds  and  are  carried  to  great  distances ;  but  it  did 
this  in  spite,  and  not  in  consequence,  of  the  imperatorial 
sovereignty. 

How,  in  view  of  all  these  facts  of  Roman  history  and  of 
Napoleon  I.,  the  French  have  been  able  once  more  boastfully 
to  return  to  the  forms  and  principles  of  imperatorial  sov- 
ereignty, and  once  more  to  confound  an  apparently  voluntary 
divestment  of  all  freedom  with  liberty,  is  difficult  to  be  un- 
derstood by  any  one  who  is  accustomed  to  self-government. 
Whatever  allowance  we  may  make  on  the  ground  of  vanity, 
both  because  it  may  please  the  ignorant  to  be  called  upon  to 
vote  yes  or  no  regarding  an  imperial  crown,  and  because  it 
may  please  them  more  to  have  an  imperial  government  than 
one  that  has  no  such  sounding  name ;  whatever  may  be 
ascribed  to  military  recollections — and,  unfortunately,  in  his- 
tory people  only  see  prominent  facts,  as  at  a  distance  we  see 
only  the  steeples  of  a  town,  and  not  the  dark  lanes  and  crowd- 
ing misery  which  may  be  around  them ;  whatever  allowance 
may  be  made,  and  however  well  we  may  know  that  the  whole 
could  never  have  been  effected  without  a  wide-spread  central- 
ized government  and  an  enormous  army^ — it  still  remains 
surprising  to  us  that  the  French,  or  at  least  those  who  now 
govern,  please  themselves  in  the  imperatorial  forms  of  RomC; 
and  in  presenting  popular  absolutism  as  a  desirable  phase  of 


See  paper  on  Elections,  in  the  Appendix. 


AND  SELF-GOVERNMENT. 


377 


democracy.  As  though  Tacitus  had  written  like  a  contented 
man,  and  not  with  despair  in  his  breast,  breathed  into  many 
hnes  of  his  melancholy  annals  ! 

Yet  so  it  is.  Mr.  Troplong,  now  president  of  the  senate, 
said  on  a  solemn  occasion,  after  the  sanguinary  second  of 
December,  when  he  was  descanting  on  the  services  rendered 
by  Louis  Napoleon :  "  The  Roman  democracy  conquered  in 
Caesar  and  in  Augustus  the  era  of  its  tardy  avhicment.'"^  If 
imperatorial  sovereignty  were  to  be  the  lasting  destiny  of 
France,  and  not  a  phase,  French  history  would  consist  of  a 
long  royal  absolutism ;  a  short  struggle  for  liberty,  with  the 
long  fag-end  of  Roman  history — the  avencnient  of  democracy 
in  its  own  destroyer,  the  imperatorial  sovereignty,  but  without 
the  long  period  of  Roman  republicanism. 

The  same  gentleman  drew  up  the  report  of  the  senatorial 
committee  to  which  had  been  referred  the  subject,  whether  the 
people  should  be  called  upon  to  vote  Yes  or  No  on  the  ques- 


'  A  sepulchral  inscription  in  honor  of  Masaniello  had  an  allusion  conceived 
in  a  similar  spirit.  I  give  it  entire,  as  it  probably  will  be  interesting  to  many 
readers. 

Eulogium 

7 homcB  Aniello  de  Amalfio 

Cetario  mox  Cesar eo 

Honore  conspicuo 

qui 

Oppressa  patria  Parthenope 

cum 

Suppressione  nobilium 

Combustione  niobiliitm 

Purgatione  exulum 

Extindione  vectigalium 

Proregis  injustitia 

Liber ata 

Ab  his  quos  liberavit  est  peringrate  occisus 

^tatis  sua  anno  vigesimo  seMimo,  imperii  vero 

Decennio 

Mortuus  non  minus  qiiam  vivus 

Tritimphavit 

Tanta  rei  populus  Neapolitanus  tanquam  immemor 

Posuit. 


378 


ON  CIVIL  LIBERTY 


tion :  Shall  the  republic  be  changed  into  an  empire  ?  This 
extraordinary  report  possesses  historical  importance,  because 
it  is  a  document  containing  the  opinion  of  such  a  body  as  the 
French  senate,  and  the  political  creed  of  the  ruling  party.  I 
shall  give  it,  therefore,  a  place  in  the  Appendix.  It  contains 
the  same  views  mentioned  above,  but  spread  over  a  consid- 
erable space,  occasionally  with  surprising  untenableness  and 
inconsistency. 

So  little,  indeed,  has  imperatorial  sovereignty  to  do  with 
liberty,  that  we  find  even  the  earliest  Asiatics  ascribing  the 
origin  of  their  despotic  power  to  unanimous  election.  I  do 
not  allude  only  to  the  case  of  Deioces,  related  by  Herodotus, 
but  to  the  mythological  books  of  Asiatic  nations.  The  fol- 
lowing extract  from  the  Mongolian  cosmogony,  whose  mythos 
extends  over  a  vast  part  of  the  East,  is  so  curious  and  so 
striking  an  instance  of  "  the  aveneinent  of  democracy" — though 
not  a  tardy  one — and  so  clear  a  conception  of  imperatorial 
sovereignty  without  a  suspicion  of  liberty,  as  a  matter  of 
course,  since  the  whole  refers  to  Asia,  that  the  reader  will  not 
be  dissatisfied  with  the  extract. 

"  At  this  time  (that  is,  after  evil  had  made  its  appearance 
on  earth)  a  living  being  appeared,  of  great  beauty  and  excel- 
lent aspect,  and  of  a  candid  and  honest  soul  and  clear  intellect. 
This  being  confirmed  the  righteous  possessors  in  their  prop- 
erty, and  obliged  the  unrighteous  possessors  to  give  up  what 
they  had  unjustly  acquired.  Thereupon  the  fields  were  dis- 
tributed according  to  equal  measure,  and  to  every  one  was 
done  even  justice.  Then  all  elected  him  for  their  chief,  and 
yielded  allegiance  to  him  with  these  words :  We  elect  thee 
for  our  chief,  and  we  will  never  trespass  thy  ordinances.  On 
account  of  this  unanimous  election,  he  is  called  in  the  Indian 
language  Ma-ha-Ssamati-Radsha ;  in  Thibetian,  Mangboi-b 
Kurbai-r  Gjabbo ;  and  in  Mongolian,  Olana-ergukdeksen  Cha- 
gran  (the  many-elected  Monarch.)"' 

'  The  History  of  the  East  Mongols,  by  Ssanang  Ssetsen  Changsaidshi,  irans- 
lated  into  German  by  I.  J.  Schmidt.  I  owe  this  interesting  passage  to  my  friepi 
the  Rev.  Professor  J.  W.  Miles,  who  directed  my  attention  to  the  work. 


AND  SELF-GOVERNMENT.  '}>79 

"  In  the  name  of  the  people,"  are  the  words  with  whicli 
commenced  the  first  decree  of  Louis  Napoleon,  issued  after 
the  second  of  December,  when  he  had  made  himself  master  of 
France,  and  in  which  he  called  upon  all  the  French  to  state 
whether  he  should  have  unlimited  power  for  ten  years.  If  it 
was  not  their  will,  the  decree  said,  there  was  no  necessity  of 
violence,  for  in  that  case  he  would  resign  his  power.  This 
was  naive.  But  theories  or  words  proclaimed  before  the  full 
assumption  of  imperatorial  sovereignty  are  of  as  little  impor- 
tance as  after  it.  Where  liberty  is  not  a  fact  and  a  daily 
recurring  reality,  it  is  not  liberty.  The  word  Libertas  occurs 
frequently  on  the  coins  of  Nero,  and  still  more  often  the  sen- 
timental v/ords,  Fides  Mutua,  Liberalitas  Augusta,  Felicitas 
Publica. 

Why,  it  may  still  be  asked,  did  the  Caesars  recur  to  the 
people  as  the  source  of  their  power,  and  why  did  the  civilians 
say  that  the  emperor  was  legislator,  and  power-holder,  inas- 
much as  the  majestas  of  the  Roman  people,  who  had  been 
legislators  and  power-holders,  had  been  conferred  upon  him  ? 
Because,  partly,  the  first  Caesars,  at  any  rate  the  very  first,  had 
actually  ascended  the  steps  of  power  with  the  assistance  of 
some  popular  element,  cheered  on  somewhat  like  a  diademed 
tribune ;  because  there  was  and  still  is  no  other  actual  source 
of  power  imaginable  than  the  people,  whether  they  positively 
give  it,  or  merely  acquiesce^  in  the  imperatorial  power,  and 
because,  as  to  the  historical  fact  by  which  power  in  any  given 
case  is  acquired,  we  must  never  forget  that  the  ethical  element 
and  that  of  intellectual  consistency  are  so  inbred  in  man  that, 
wherever  humanity  is  developed,  a  constant  desire  is  observ- 
able to  make  actions,  however  immoral  or  inconsistent,  at 
least  theoretically  agree  with  them.  No  proclamation  of  war 
has  ever  avowed,  I  believe,  that  war  was  simply  undertaken 
because  he  who  issued  the  proclamation  had  the  power  and 

'  As  the  words  stand  above,  I  own,  they  may  be  variously  interpreted  ;  but  it 
would  evidently  lead  me  too  far,  were  I  to  attempt  a  full  statement  of  the  sense 
in  which  I  take  them,  which  indeed  I  have  done  at  length  in  my  Political 
Ethics. 


38o 


ON  CIVIL  LIBERTY 


meant  to  use  it  fas  aut  nefas.'     Even  Attila  called  himself  the 
scourge  of  God. 

No  matter  what  the  violence  of  facts  has  been,  however 
rudely  the  shocks  of  events  have  succeeded  one  another,  the 
first  thing  that  men  do  after  these  events  have  taken  place  is 
invariably  to  bring  them  into  some  theoretical  consistency, 
and  to  attempt  to  give  some  reasonable  account  of  them. 
This  is  the  intellectual  demand  ever  active  in  man.  The  other, 
equally  active,  is  the  ethical  demand.  No  man,  though  he  com- 
manded innumerable  legions,  could  stand  up  before  a  people 
and  say :  "  I  owe  my  crown  to  the  murder  of  my  mother,  to 
the  madness  of  the  people,  or  to  slavish  place-men."  To 
appear  merely  respectable  in  an  intellectual  and  ethical  point 
of  view,  requires  some  theoretical  decorum.  The  purer  the 
generally  acknowledged  code  of  morality  or  the  prevailing 
religion  is,  or  the  higher  the  general  mental  system  which 
prevails  at  the  time,  the  more  assiduous  are  also  those  who 
lead  the  public  events,  to  establish,  however  hypocritically, 
this  apparent  agreement  between  their  acts  and  theory,  as  well 
as  mo^als.  It  is  a  tribute,  though  impure,  paid  to  truth  and 
morality. 


*  The  reader  sufficiently  acquainted  with  history  will  remember  that  the  consul 
Manlius,  when  the  Galatians,  a  people  in  Asia  Minor,  urged  that  they  had  given 
no  offence  to  the  Romans,  answered  that  they  were  a  profligate  people  deserving 
punishment,  and  that  some  of  their  ancestors  had,  centuries  before,  plundered 
the  temple  of  Delphi.  Justin,  the  historian,  says  thit  the  Romans  assisted  the 
Acarnanians  against  the  .^tolians  because  the  former  had  joined  in  the  Trojan 
war,  a  thousand  years  before.  But  this  principle  does  not  act,  even  to  a  degree 
of  caricature,  in  politics  only.  What  cruelties  have  not  been  committed  Pro 
majore  Dei  gloria ! 


AND  SELF-GOVERNMENT.  38 1 


CHAPTER    XXXIII. 

IMPERATORIAL   SOVEREIGNTY,    CONTINUED. ITS    ORIGIN   AND 

CHARACTER   EXAMINED. 

It  has  been  said  in  the  preceding  pages  that  imperatorial 
sovereignty  must  be  always  the  most  stringent  absolutism,' 
especially  when  it  rests  theoretically  on  election  by  the  whole 
people,  and  that  the  transition  from  an  uninstitutional  popular 
absolutism  to  the  imperatorial  sovereignty  is  easy  and  natural. 
At  the  time  of  the  so-called  French  republic  of  1848,  it  was 
a  common  way  of  expressing  the  idea  then  prevailing,  to  call 
the  people  le  peuple-roi  (the  king-people,)  and  an  advocate, 
defending  certain  persons  before  the  high  court  of  justiciary 
sitting  at  Versailles  in  1849,  for  having  invaded  the  chamber 
of  representatives,  and  consequently  having  violated  the  con- 
stitution, used  this  remarkable  expression :  "the  people"  (con- 
founding of  course  a  set  of  people,  a  gathering  of  a  part  of  the 
inhabitants  of  a  single  city,  with  the  people)  "  never  violate 
the  constitution."  ^ 

Where  such  ideas  prevail,  the  question  is  not  about  a  change 
of  ideas,  but  simply  about  the  lodgment  of  power.  The  minds 
and  souls  are  already  thoroughly  familiarized  with  the  idea  of 
absolutism,  and  destitute  of  the  idea  of  self-government.  This 
is  also  one  of  the  reasons  why  there  is  so  much  similarity  be- 
tween monarchical  absolutism,  such  for  instance  as  we  see  in 


'  That  absolutism  and  imperatorial  sovereignty  go  hand  in  hand,  was  neatly 
acknowledged  by  an  inscription  over  the  sub-prefecture  of  Dunkerque,  when  the 
imperial  couple  passed  it,  in  1855.  It  was  to  this  effect:  A  I'h^ritier  de  Napo- 
leon, la  ville  de  Louis  XIV. 

"  Mr.  Michel,  on  the  loth  of  November.  I  quote  from  the  French  papers, 
which  gave  detailed  reports.  Mr.  Michel,  to  judge  from  his  own  speech,  seems 
to  have  been  the  oldest  of  the  defending  advocates. 


382  ON  CIVIL  LIBERTY 

Russia,  and  communism,  as  it  was  preached  in  France;  and  it 
explains  why  absolutism,  having  made  rapid  strides  under  the 
Bourbons  before  the  first  revolution,  has  terminated  every  suc- 
cessive revolution  with  a  still  more  compressive  absolutism 
and  centralism,  except  indeed  the  revolution  of  1830.  This 
revolution  was  undertaken  to  defend  parliamentary  govern- 
ment, and  may  be  justly  called  a  counter-revolution  on  the 
part  of  the  people  against  a  revolution  attempted  and  partially 
carried  by  the  government.  It  explains  farther  how  Louis 
Napoleon  after  the  second  of  December,  and  later  when  he 
desired  to  place  the  crown  of  uncompromising  absolutism  on 
his  head,  could  appeal  to  the  universal  suffrage  of  all  France 
— he  that  had  previously  curtailed  it,  with  the  assistance  of 
the  chamber  of  representatives.  This  phenomenon,  however, 
must  be  explained  also  by  the  system  of  centralism,  which 
prevails  in  France.  I  shall  offer  a  few  remarks  on  this  topic 
after  having  treated  of  some  more  details  appertaining  to  the 
subject  immediately  in  hand. 

The  idea  of  the  peuple-roi  (it  would  perhaps  have  been  more 
correct  to  say  peuple-czar)  also  tends  to  explain  the  other- 
wise inconceivable  hatred  against  the  bourgeoisie,  by  which  the 
French  understand  the  aggregate  of  those  citizens  who  inhabit 
towns  and  live  upon  a  small  amount  of  property  or  by  traffic. 
The  communists  and  the  French  so-called  democrats  enter- 
tained a  real  hatred  against  the  bourgeoisie  ;  the  proclama- 
tions, occasionally  issued  by  them,  openly  avowed  it;  and  the 
government,  when  it  desired  to  establish  unconditional  abso- 
lutism in  form  as  well  as  principle,  fanned  this  hatred.  Yet 
no  nation  can  exist  without  this  essential  element  of  society. 
In  reading  the  details  of  French  history  of  the  year  1848  and 
the  next  succeeding  years,  the  idea  is  forced  upon  our  mind 
that  a  vast  multitude  of  the  French  were  bent  on  establish- 
ing a  real  and  unconditional  aristocracy  of  the  ouvrier — the 
workman.' 


'  This  error  broke  forth  into  full  blaze  at  the  indicated  time,  but  it  had  of 
course  been  long  smouldering,  and,  as  is  custf^mary,  had  found  some  fuel  even 


AND  SELF-GOVERNMENT.  383 

If  the  imperatorial  sovereignty  is  founded  upon  an  actual 
process  of  election,  whether  this  consist  in  a  mere  form  or  not, 
it  bears  down  all  opposition,  nay  all  dissent,  however  lawful  it 
may  be,  by  a  reference  to  the  source  of  its  power.  It  says  : 
"I  am  the  people,  and  whoever  dissents  from  me  is  an  enemy 
to  the  people.  Vox  Populi  vox  Dei.  My  divine  right  is  the 
voice  of  God,  which  spake  in  the  voice  of  the  people.  The 
government  is  the  true  representative  of  the  people."* 


in  our  country.  In  the  year  1841,  during  the  presidential  canvass,  a  gentleman 
— ^who  has  since  become  the  editor  of  a  Catholic  periodical,  and  has  probably 
changed  his  views — published  a  pamphlet  in  vtrhich  he  attacked  individual  prop- 
erty, and  fell  into  the  same  error  which  is  spoken  of  in  the  text  above. 

The  author  of  the  pamphlet,  which  was  veiy  widely  distributed,  found  it  of 
course  impossible  to  draw  the  line  between  the  workmen  and  those  who  are  not 
"working,"  and  I  recollect  that  he  did  not  even  allow  the  superintendent  of  a 
factory  to  be  a  workman.  I  have  treated  of  these  subjects  in  detail  in  my  Essays 
on  Labor  and  Property,  and  believe  that  a  Humboldt  is  a  harder  "  working  man," 
not  indeed  than  the  poor  weaver  who  allows  himself  but  five  hours'  rest  in  the 
whole  twenty-four,  but  certainly  a  far  harder  working  man  than  any  of  those 
physically  employed  persons  who  want  to  make  their  class  a  privileged  order. 
The  fact  is  simply  this,  that  there  is  no  toiling  man,  however  laboriously  em- 
ployed in  a  physical  way,  that  does  not  guide  his  efforts  by  an  exertion  of  the 
brain,  and  no  mentally  employed  man  that  is  not  obliged  to  accompany  his  labor 
by  some,  frequently  by  much,  physical  exertion.  To  draw  an  exact  line  between 
the  two,  for  political  purposes,  is  impossible.  All  attempts  at  doing  so  are  mis- 
chievous. The  hands  and  the  brain  rule  the  world.  All  labor  is  manual  and 
cerebral,  but  the  proportion  in  which  the  elements  combine  is  infinite.  So  soon 
as  no  cerebral  labor  is  necessary,  we  substitute  the  animal  or  the  machine.  In 
reading  some  socialist  works,  one  would  almost  suppose  that  men  had  returned 
to  some  worship  of  the  animal  element,  raising  pure  physical  exertion  above  all 
other  human  endeavors.  Humanity  does  not  present  itself  more  respectably  than 
in  the  industrious  and  intelligent  artisan,  but  every  artisan  justly  strives  to  reach 
that  position  in  which  he  works  more  by  the  intellect  than  by  physical  exertion. 
He  strives  to  be  an  employer.  The  type  of  a  self-dependent  and  striving  Ameri- 
can artisan  is  a  really  noble  type.  The  author  hopes  to  count  many  an  American 
operative  among  his  readers;  and,  if  he  be  not  deceived,  he  takes  this  opportunity 
of  declaring  that  he  believes  he  too  has  a  very  fair  title  to  be  called  a  hard- 
working man,  without  claiming  any  peculiar  civil  privileges  on  that  account. 

'  The  idea  that  God  speaks  through  the  voice  of  the  people,  familiar  to  thj 
middle  ages,  is  connected  with  the  elections  of  ruder  times  by  general  acclaim. 
It  reminds  us  also  of  the  Dieu  le  veut,  at  Clermont,  when  Peter  the  Hermit  called 
on  the  chivalry  and  the  people  to  take  the  sign  of  the  cross.  And  again  it  reminds 
us  of  the  disastrous  dicrets  d' acclamation  of  the  first  French  revolution.     That 


384 


ON  CIVIL  LIBERTY 


The  eight  millions  of  votes,  more  or  less,  which  elevated  the 
present  French  emperor,  first  to  the  decennial  presidency  and 
then  to  the  imperial  throne,  are  a  ready  answer  to  all  objec- 
tions. If  private  property  is  confiscated  by  a  decree ;  if  per- 
sons are  deported  without  trial ;  if  the  jury  trial  is  shorn  of 
its  guarantees,  the  answer  is  always  the  same.  The  emperor 
is  the  unlimited  central  force  of  the  French  democracy;  thus 
the  theory  goes.  He  is  the  incarnation  of  the  popular  power, 
and  if  any  of  the  political  bodies  into  which  the  imperatorial 
power  may  have  subdivided  itself,  like  a  Hindoo  god,  should 
happen  to  indicate  an  opinion  of  its  own,  it  is  readily  given  to 
understand  that  the  government  is  in  fact  the  people.  Such 
bodies  cannot,  of  course,  be  called  institutions ;  for  they  are 
devoid  of  independence  and  every  element  of  self-government. 
The  president  of  the  French  legislative  corps  in  1853,  found 
it  necessaiy,  on  the  opening  of  the  session,  to  assure  his  col- 
leagues, in  an  official  address,  that  their  body  was  by  no  means 
without  some  importance  in  the  political  system,  as  many 
seemed  to  suppose. 

The  source  of  imperatorial  power,  however,  is  hardly  ever 
what  it  is  pretended  to  be,  because,  if  the  people  have  any 
power  left,  it  is  not  likely  that  they  will  absolutely  denude 
themselves  of  it,  surely  not  in  any  modern  and  advanced 
nation.  The  question  in  these  cases  is  not  whether  they  love 
liberty,  but  simply  whether  they  love  power — and  every  one 
loves  power.  On  the  one  hand,  we  have  to  observe  that  no 
case  exists  in  history'  in  which  the  question,  whether  impera- 
torial power  shall  be  conferred  upon  an  individual,  is  put  to 
the  people,  except  after  a  successful  conspiracy  against  the 
existing  powers  or  institutions,  or  a  coup  d'etat,  if  the  term 
be  preferred,  on  the  part  of  the  imperatorial  candidate ;  and, 
on  the  other  hand,  a  state  of  things  in  which  so  great  a  ques- 
tion  is  actually  left  to  the  people   is  wholly  unimaginable. 


the  government  is  the  true  representative  of  the  people  has  been  often  asserted  in 
recent  times  in  France,  and  Napoleon  I.,  in  one  of  his  addresses,  delivered  in 
the  council  of  state,  said  :  The  government,  too,  is  the  representative  of  the 
people. — Miot  de  Melito,  in  his  Memoirs. 


AND  SELF-GOVERNMENT.  385 

There  may  be  a  so-called  interregnum  during  the  conclave, 
when  the  cardinals  elect  a  pope,  but  a  country  cannot  be 
imagined  in  a  state  of  perfect  interregnum  while  the  question 
is  deciding  whether  a  hereditary  empire  shall  be  established. 
It  is  idle  to  feign  believing  that  this  is  possible,  most  especially 
so  where  the  question  is  to  be  decided  not  by  representatives, 
but  by  universal  suffrage,  and  that,  too,  in  a  country  where 
the  executive  power  spreads  over  every  inch  of  the  territory 
and  is  characterized  by  the  most  consistent  centralism.  The 
two  last  elections  of  Louis  Napoleon  prove  what  is  here  stated. 
Ministers,  prefects,  bishops,  were  openly  and  officially  influ- 
encing the  elections ;  not  to  speak  of  the  fact  that  large 
elections  concerning  persons  in  power,  which  allow  to  vote 
only  yes  or  no,  have  really  little  meaning,  as  the  history  of 
France  abundantly  proves.^  But  how  elections  at  present 
are  managed  in  France,  even  when  the  question  is  not  so 
comprehensive,  may  be  seen  from  a  circular  addressed  by  the 
minister,  Mr.  de  Morny,^  to  the  prefects,  previous  to  the  elec- 
tions for  the  first  legislative  corps.  It  is  an  official  paper, 
strikingly  characteristic,  and  I  shall  give  a  place  to  a  transla- 
tion of  it  in  the  Appendix.  We  ought  to  bear  in  mind  that 
one  of  the  heaviest  charges  against  Mr.  de  Polignac,  when 
tried  for  treason,  was  that  he  had  allowed  Charles  X.  to  in- 
fluence the  elections. 

When  such  a  vote  is  put  to  the  people  under  circumstances 
which  have  been  indicated,  the  first  question  which  presents 
itself  is:  And  what  if  the  vote  turn  out  No?  Will  the  can- 
didate, already  at  the  head  of  the  army,  the  executive,  and  of 
every  other  branch ;  whose  initials  are  paraded  everywhere, 
and  whose  portrait  is  in  the  courts  of  justice,  some  of  which 


'  .See  the  Paper  on  Elections,  in  the  Appendix. 

=  Mr.  de  Morny  is  ^^  frkre  aduUirin  of  Louis  Napoleon,  on  the  mother's  side, 
Queen  Hortense.  He  aided  his  half-brother  very  actively  in  the  overthrow  of 
the  republic,  and  the  establishment  of  the  empire.  Mr.  de  Morny  lost  the  min- 
istry at  the  time  when  L.  Bonaparte  despoiled  the  Orleans  family  of  their  lawful 
property,  and,  it  was  believed,  because  the  minister  could  not  in  his  conscience 
saBctiou  it;    ct  at  once  so  unlawful  and  ungrateful. 

25 


386 


ON  CIVIL  LIBERTY 


actually  have  styled  themselves  imperial,  and  who  has  been 
addressed  Sire ;  who  has  an  enormous  civil  list — will  he  make 
a  polite  bow,  give  the  keys  to  some  one  else,  and  walk  his 
way  ?  And  to  whom  was  he  to  give  the  government  ?  The 
question  was  not,  as  Mr.  de  Laroche-Jacquelin  had  proposed. 
Shall  A  or  B  rule  us  ?  Essentially  this  question  would  not 
have  been  better ;  but  there  would  have  been  apparently  some 
sense  in  it.  The  question  simply  was  :  Shall  B  rule  us  ? — Yes 
or  No.  It  is  surprising  that  some  persons  can  actually  believe 
reflecting  people  may  thus  be  duped. 

The  Caesar  always  exists  before  the  imperatorial  govern- 
ment is  acknowledged  and  openly  established.  Whether  the 
praetorians  or  legions  actually  proclaim  the  Csesar  or  not,  it  is 
always  the  army  that  makes  him.  A  succeeding  ballot  is  no- 
thing more  than  a  trimming  belonging  to  more  polished  or 
more  timid  periods,  or  it  may  be  a  tribute  to  that  civilization 
which  does  not  allow  armies  to  occupy  the  place  they  hold  in 
barbarous  or  relapsing  times,  at  least  not  openly  so. 

First  to  assume  the  power  and  then  to  direct  the  people  to 
vote,  whether  they  are  satisfied  with  the  act  or  not,  leads 
psychologically  to  a  process  similar  to  that  often  pursued  by 
Henry  VIII.,  and  according  to  which  it  became  a  common 
saying:  First  clap  a  man  into  prison  for  treason,  and  you  will 
soon  have  abundance  of  testimony.  It  was  the  same  in  the 
witch-trials. 

The  process  of  election  becomes  peculiarly  unmeaning,  be- 
cause the  power  already  assumed  allows  no  discussion.  There 
is  no  free  press.' 

Although  no  reliance  can  be  placed  on  wide-spread  elec- 
tions whose  sole  object  is  to  ratify  the  assumption  of  impera- 


'  When  the  question  of  the  new  imperial  crown  was  before  the  people  of 
France,  Count  Chambord,  the  Bourbon  prince  who  claims  the  crown  of  France 
on  the  principle  of  legitimacy,  wrote  a  letter  to  his  adherents,  exhorting  them 
not  to  vote.  The  leading  government  papers  stated  at  the  time  that  government 
would  have  permitted  the  publication  of  this  letter,  had  it  not  attacked  the  prin- 
ciple of  the  people's  sovereignty.  The  people  were  acknowledged  sovereign, 
yet  the  government  decides  what  the  sovereign  may  read ! 


AND  SELF-GOVERNMENT.  387 

tonal  sovereignty,  and  when  therefore  it  already  dictatorially 
controls  all  affairs,  it  is  not  asserted  that  the  dictator  may  not 
at  times  be  supported  by  large  masses,  and  possibly  assume 
the  imperatorial  sovereignty  with  the  approbation  of  a  majority. 
I  have  repeatedly  acknowledged  it ;  but  it  is  unquestionably 
true  that  generally  in  times  of  commotion,  and  especially  in 
uninstitutional  countries,  minorities  rule,  for  it  is  minorities 
that  actually  contend.  Yet,  even  where  this  is  not  the  case, 
the  popularity  of  the  Caesar  does  in  no  way  affect  the  ques- 
tion. Large,  unarticulated  masses  are  swayed  by  temporary 
opinions  or  passions,  as  much  so  as  individuals,  and  it  requires 
but  a  certain  skill  to  seize  upon  the  proper  moment  to  receive 
their  acclamation,  if  they  are  willing  and  consider  themselves 
authorized  to  give  away,  by  one  sudden  vote,  all  power  and 
liberty,  not  only  for  their  own  lifetime,  but  for  future  gen- 
erations. In  the  institutional  government  alone,  substantial 
public  opinion  can  be  generated  and  brought  to  light. 

It  sometimes  happens  that  arbitrary  power  or  centralism 
recommends  itself  to  popular  favor  by  showing  that  it  intends 
to  substitute  a  democratic  equality  for  oligarchic  or  oppressive, 
unjust  institutions,  and  the  liberal  principle  may  seem  to  be 
on  the  side  of  the  levelling  ruler.  This  was  doubtless  the  case 
when  in  the  sixteenth  and  seventeenth  centuries  the  power  of 
the  crown  made  itself  independent  on  the  continent  of  Europe. 
Instead  of  transforming  the  institutions,  or  of  substituting  new 
ones,  the  governments  levelled  them  to  the  ground,  and  that 
unhappy  centralization  was  the  consequence  which  now  draws 
every  attempt  at  liberty  back  into  its  vortex.  At  other  times, 
monarchs  or  governments  disguise  their  plans  to  destroy 
liberty  in  the  garb  of  liberty  itself  Thus,  James  II.  endeavored 
to  break  through  the  restraints  of  the  constitution,  or  perhaps 
ultimately  to  establish  the  Catholic  religion  in  England,  by 
proclaiming  liberty  of  conscience  for  all,  against  the  estab- 
lished church.  Austria  at  one  time  urged  measures,  appar- 
ently liberal  for  the  peasants,  against  the  Gallician  nobles.  In 
such  cases,  governments  are  always  sure  to  find  numerous 
persons  that  do  not  look  beyond  the  single  measure,  or  to 


388 


ON  CIVIL  LIBERTY 


the  means  by  which  it  is  carried  out ;  yet  the  legahty  and 
constitutionahty  of  these  means  are  of  great,  and  frequently 
of  greater  importance  than  the  measure  itself  Even  his- 
torians are  frequently  captivated  by  the  apparently  liberal 
character  of  a  single  measure,  forgetting  that  the  dykes  of 
an  institutional  government  once  being  broken  through,  the 
whole  country  may  soon  be  flooded  by  an  irresistible  tide  of 
arbitrary  power.  We  have  a  parallel  in  the  criminal  trial,  in 
which  the  question  how  we  arrive  at  the  truth  is  of  equal  im- 
portance with  the  object  of  arriving  at  truth.  Nullum  bonum 
nisi  bene. 

On  the  other  hand,  all  endeavors  to  throw  more  and  more 
unarticulated  power  into  the  hands  of  the  primary  masses, 
to  deprive  a  country  more  and  more  of  a  gradually  evolv- 
ing character;  in  one  word,  to  introduce  an  ever-increasing, 
direct,  unmodified  popular  power,  amount  to  an  abandonment 
of  self-government,  and  an  approach  to  imperatorial  sover- 
eignty, whether  there  be  actually  a  Caesar  or  not — to  popu- 
lar absolutism,  whether  the  absolutism  remain  for  any  length 
of  time  in  the  hands  of  a  sweeping  majority,  subject,  of 
course,  to  a  skilful  leader,  as  in  Athens  after  the  Peloponne- 
sian  war,  or  whether  it  rapidly  pass  over  into  the  hands  of  a 
broadly  named  Caesar.  Imperatorial  sovereignty  may  be  at  a 
certain  period  more  plausible  than  the  sovereignty  founded 
upon  divine  right,  but  they  are  both  equally  hostile  to  self- 
government,  and  the  only  means  to  resist  the  inroads  of  power 
is,  under  the  guidance  of  Providence  and  a  liberty-wedded 
people,  the  same  means  which  in  so  many  cases  have  with- 
stood the  inroads  of  the  barbarians,  namely,  the  institution — • 
the  self-sustaining  and  organic  systems  of  laws. 


AND  SELF-GOVERNMENT.  389 


CHAPTER    XXXIV. 

CENTRALIZATION. INFLUENCE   OF   CAPITAL   CITIES. 

We  have  seen  in  how  great  a  degree  French  centraHsm  has 
produced  an  incapacity  for  self-rule,  according  to  one  of  the 
most  distinguished  statesmen  of  France  herself  This  central- 
ism, in  conjunction  with  imperatorial  sovereignty,  has  pro- 
duced some  peculiar  effects  upon  a  nation  so  intelligent, 
ardent,  and  wedded  to  system  as  the  French  are.  Before  I 
conclude  this  treatise,  therefore,  I  beg  leave  to  offer  a  few 
remarks,  which  naturally  suggest  themselves,  in  connection 
with  centralism  and  imperatorial  sovereignty ;  both  so  promi- 
nent at  this  moment  in  France. 

Centralism  has  given  to  Paris  an  importance  which  no  capi- 
tal possesses  in  any  other  country.  The  French  themselves 
often  say  Paris  is  France ;  foreigners  always  say  so ;  and  to 
them  as  well  as  to  those  French  people  who  desire  to  enjoy, 
at  one  round,  as  much  as  possible  of  all  that  French  civiliza- 
tion produces,  this  is,  doubtless,  very  agreeable  and  instructive. 
Paris  is  brilliant,  as  centralism  frequently  is ;  Paris  naturally 
flatters  the  vanity  of  the  French;  Paris  stands  with  many 
people  for  France,  because  they  see  nothing  of  France  but 
Paris.  Centralization  appears  most  imposing  in  Paris — in  the 
buildings,  in  demonstrations,  in  rapidity  of  execution,  and  in 
an  aesthetical  point  of  view.  Upon  a  close  examination  of 
history,  however,  we  shall  find  that  it  has  been  not  only  a 
natural  effect  of  centralism,  but  an  object  of  all  absolute  rulers 
over  intelligent  races,  to  beautify  the  capital  and  raise  its 
activity  to  the  highest  point.  The  effect  is  remarkable.  The 
government  of  King  Jerome,  of  Westphalia — now  again  prince 
of  France — was  one  of  the  most  ruinous  that  has  ever  existed, 
and  yet  long  after  the  downfall  of  that  ephemeral  kingdom, 


390  ON  CIVIL  LIBERTY 

every  disapproval  of  it  was  answered  by  a  reference  to  the 
embellishment  of  Cassel,  the  capital.^ 


'  There  are  psychological  processes  which  indicate  suspicious  intentions — the 
adoption  of  a  new  and  scientifically  sounding  term  for  an  old  and  common 
offence,  as  Repudiation  for  declining  to  pay  what  is  due ;  and  of  mystifying,  high- 
sounding  abstractions  in  statesmanship.  The  latter  is  carried  to  a  degree,  in  the 
following  address  of  Napoleon,  which  is  rare  even  in  France.  Louis  XIV.,  ac- 
cording to  the  present  emperor  of  the  French,  the  great  representative  of  French 
unity  and  glory,  when  he  had  ruined  France  by  the  building  of  Versailles,  warned, 
on  his  death-bed,  his  successor  to  beware  of  wars  and  of  building.  There  are  so 
many  points  of  French  politics  tersely  put  in  the  speech  of  Napoleon  III.,  when 
in  September  of  1857  he  opened  the  Louvre,  that  its  record  may  be  considered  a 
historical  document.     We  give  it  therefore  entire. 

The  ceremony  of  opening  the  Louvre  was'  simple  but  imposing.  The  minis- 
ters, marshals  and  generals,  the  senators  and  great  functionaries,  assembled  in  the 
hall  of  the  Louvre.  The  emperor  and  empress  arrived  at  two  o'clock  with  a 
vast  retinue.  The  business  began  by  the  presentation  of  an  address  to  the  em- 
peror from  M.  Fould,  briefly  describing  the  origin  and  completion  of  a  work 
which,  begun  in  1852  and  finished  in  1857,  unites  the  Louvre  and  the  Tuileries. 
The  emperor  next  distributed  the  legion  of  honor  to  the  professional  men  who 
have  distinguished  themselves  during  the  erection  of  the  building ;  making  some 
commanders,  some  simple  knights.  Having  distributed  all  the  honors,  the  em- 
peror delivered  the  following  address : 

"  Gentlemen — I  congratulate  myself,  with  you,  on  the  completion  of  the 
Louvre.  I  congratulate  myself  especially  upon  the  causes  which  have  rendered 
it  possible.  In  fact,  it  is  order,  restored  stability,  and  the  ever-increasing  pros- 
perity of  the  country,  which  have  enabled  me  to  complete  this  national  work.  I 
call  it  so  because  the  governments  which  have  succeeded  each  other  have  made 
it  a  point  to  do  something  towards  the  completion  of  the  royal  dwelling  com- 
menced by  Francis  I.  and  embellished  by  Henry  II. 

"  Whence  this  perseverance,  and  even  this  popularity,  in  the  building  of  a 
palace  ?  It  is  because  the  character  of  a  people  is  reflected  in  its  institutions  as 
in  its  customs,  in  the  events  that  excite  its  enthusiasm  as  well  as  in  the  monu- 
ments which  become  the  object  of  its  chief  interest.  Now  France,  monarchical 
for  so  many  centuries,  which  always  beheld  in  the  central  power  the  representa- 
tive of  her  grandeur  and  of  her  nationality,  wished  that  the  dwelling  of  the  sov- 
ereign should  be  worthy  of  the  country ;  and  the  best  means  of  responding  to  that 
sentiment  was  to  adorn  that  dwelling  with  the  different  masterpieces  of  human 
intelligence. 

"  In  the  middle  ages,  the  king  dwelt  in  a  fortress,  bristling  with  defensive 
works;  but  soon  the  progress  of  civilization  superseded  battlements,  and  the 
produce  of  letters,  of  the  arts  and  sciences,  took  the  place  of  weapons  of  war. 
Thus  the  history  of  monuments  has  also  its  philosophy  as  well  as  the  history  of 
events. 

"  In  like  manner  as  it  is  remarkable  that  at  the  time  of  the  first  revolution,  the 


AND   SELF-GOVERNMENT.  39I 

Capital  cities  and  residences  of  kings,  and  even  of  petty 
princes,  have  in  this  respect  the  same  effect  which  single  large 
fortunes  or  single  busy  places  have  on  the  minds  of  the  super- 
ficial, in  point  of  political  economy.  They  are  palpable,  and 
strike  the  mind,  yet  they  prove  nothing  of  themselves.  There 
is  not  a  war,  however  ruinous,  that  does  not  produce  gigantic 
gains  for  some  bankers,  contractors,  and  able  speculators. 
They  are  often  pointed  out  to  prove  that  a  certain  war  has  not 
been  fatal  to  general  prosperity.  There  have  never  existed 
greater  fortunes  than  those  of  some  princely  Roman  senators, 
with  their  latifundia,  in  the  very  worst  periods  of  the  Roman 
empire,  amidst  universal  ruin,  and  when  the  country  was  fast 
declining  to  that  state  in  which  the  tillers  of  the  soil  aban- 
doned their  farms,  because  unable  to  pay  the  taxes,  and  in 
which  Italy,  with  the  utmost  exertion  of  the  government,  was 
not  able  to  raise  an  army  against  invading  hordes. 

Whenever  we  shall  have  executed  our  railway  to  the  Pacific, 
nothing  of  it  will  be  seen  at  one  moment  and  by  the  physical 
eye,  that  differs  from  the  rails  of  any  other  road,  and  the 
vulgar  will  be  struck  far  more  by  a  palace  at  Versailles,  or  a 


committee  of  public  welfare  should  have  continued,  without  being  aware  of  it, 
the  work  of  Louis  XI.,  of  Richelieu,  of  Louis  XIV.,  giving  the  last  blow  to  the 
feudal  system,  and  carrying  out  the  system  of  unity  and  centralization,  the  con- 
stant aim  of  monarchy — in  like  manner  is  there  not  a  great  lesson  to  learn  in 
beholding  the  idea  of  Henry  IV.,  of  Louis  XIII.,  of  Louis  XIV.,  of  Louis  XV., 
of  Louis  XVI.,  of  Napoleon,  as  regards  the  Louvre,  adopted  by  the  ephemeral 
power  of  1848  ?  One  of  the  first  acts,  in  fact,  of  the  provisional  government,  was 
to  decree  the  completion  of  the  palace  of  our  kings.  So  true  is  it  that  a  nation 
draws  from  its  antecedents,  as  an  individual  derives  from  his  education,  ideas 
which  the  passions  of  a  moment  do  not  succeed  in  destroying.  When  a  moral 
impulse  is  the  consequence  of  the  social  condition  of  a  country,  it  is  handed 
down  through  centuries,  and  through  different  forms  of  government,  until  the 
object  in  view  is  attained. 

"  Thus  the  completion  of  the  Louvre,  towards  which  I  thank  you  for  your  co- 
operation, given  with  so  much  zeal  and  skill,  is  not  the  caprice  of  a  moment,  but 
is  the  realization  of  a  plan  conceived  for  the  gloiy  and  kept  alive  by  the  instinct 
of  the  country  for  more  than  three  hundred  years." 

In  the  evening  some  hundreds  of  persons  engaged  in  the  work — workingmen, 
artists,  men  of  letters,  journalists — were  entertained  at  dinner  by  the  minister  of 
state  in  a  gallery  of  the  Louvre.     Of  course  the  speaking  was  ultra-loyal. 


392 


ON  CIVIL  LIBERTY 


column  of  Trajan ;  unless,  indeed,  a  pointing  hand  were  hewn 
in  granite,  at  San  Francisco,  with  the  words.  To  the  Atlantic, 
and  another  at  some  Atlantic  city,  with  the  words,  To  the 
Pacific ;  and  even  then  the  grandeur  of  the  road  would  not  be 
perceived  by  the  physical  eye.' 

We  live  in  an  age  which  has  justly  been  called  the  age  of 
large  cities.^  Populous  cities  are  indispensable  to  civilization, 
and  even  to  liberty,  though  I  own  that  one  of  the  problems 
we  have  yet  to  solve  is,  how  to  unite  in  large  cities  the  highest 
degree  of  individual  liberty  and  order. 

But  absorbing  cities,  cities  on  which  monarchs  are  allowed 
to  lavish  millions  of  the  national  wealth,  always  belong  to  a 
low  state  of  general  national  life,  often  to  effete  empires.  The 
vast  cities  of  Asia,  Byzantium,  imperial  Rome,  and  many  other 
cities  prove  it.  On  the  other  hand,  it  is  an  unfortunate  state 
of  things  in  which  one  city  rules  supreme,  either  by  an  over- 
whelming population,  as  Naples,  or  by  concentration,  as  Paris. 
Constant  changes  of  governments  seem  alm'ost  inevitable, 
whether  they  are  produced  by  the  people,  as  in  the  case  of 
Paris,  or  by  foreigners,  as  was  formerly  the  case  in  Naples. 

A  comparison  between  Paris  and  London,  in  this  respect,  is 
instructive.  London,  far  more  populous,  has  far  less  influence 
than  Paris ;  and  London,  incomparably  richer,  is  far  less  bril- 
liant than  Paris.  Monarchical  absolutism  and  centralism 
strike  the  eye  and  strive  to  do  so ;  liberty  is  brilliant  indeed, 
but  it  is  brilliant  in  history,  and  must  be  studied  in  her  insti- 
tutions.3 


'  No  one  will  charge  the  author,  he  trusts,  with  political  iconoclasm,  that  has 
read  his  chapter  on  monuments  in  his  Political  Ethics. 

«  The  Age  of  Great  Cities,  or  Modern  Society  viewed  in  its  Relation  to  Intelli- 
gence, Morals  and  Religion,  by  Robert  Vaughn,  D.D.,  London,  1843. 

3  This  manifests  itself  in  all  spheres,  Paris  leads  in  fashion,  art,  science^ 
language,  etc.     England  has  her  Oxford  and  Cafubridge. 

The  title  of  Walker's  Critical  Pronouncing  Dictionaiy  has  these  words  :  "  Like- 
wise Rules  to  be  observed  by  the  Natives  of  Scotland,  Ireland  and  London,  for 
avoiding  their  respective  Peculiarities,"  as  indicating  part  of  the  contents.  This 
is  strikingly  English.     The  pronunciation  and  "  peculiarities"  of  the  Parisians, 


AND  SELF-GOVERNMENT.  393 

Great  as  the  influence  of  Paris  has  been  ever  since  the  reign 
of  the  Valois,  it  has  steadily  increased,  and  those  who  strove 
for  liberty  were  by  no  means  behind  the  others  in  their  wor- 
ship of  the  capital.  This  singular  idolatry  was  actually  ac- 
knowledged by  several  resolutions  of  the  representatives  of 
the  people,  during  the  late  republic. 

The  intense  influence  of  Paris,  together  with  the  wide-spread 
system  of  government,  every  single  thread  of  which  centres 
in  Paris,  is  such  that,  in  1848,  the  republic  was  literally  tele- 
graphed to  the  departments,  and  adopted  without  any  resist- 
ance from  any  quarter,  civil  or  military,  which  cannot  be 
explained  by  the  often-avowed  horror  of  the  French  at  shed- 
ding French  blood,  since  blood  was  readily  shed  to  elevate 
Louis  Napoleon.  The  same  causes  made  it  possible  for  the 
republic,  so  readily  and  unanimously  adopted,  to  be  with  equal 
readiness  changed  by  eight  millions  of  votes  into  a  monarchy. 

It  has  already  been  admitted  that  centralism,  by  the  very 
fact  that  it  concentrates  great  power,  can  produce  many  strik- 
ing results  which  it  is  not  in  the  power  of  governments  on  a 
different  principle  to  exhibit.  These  effects  please  and  often 
popularize  a  government ;  but  there  is  another  fact  to  be  taken 
into  consideration.  Symmetiy  is  one  of  the  elements  of 
humanity ;  systematizing  is  one  of  man's  constant  actions.  It 
captivates  and  becomes  dangerous,  if  other  elements  and 
activities  equally  important  are  neglected,  or  if  it  is  carried 
into  spheres  in  which  it  ought  not  to  prevail.  The  regu- 
larity and  consistent  symmetry,  together  with  the  principle 
of  unity,  which  pervade  the  whole  French  government,  charm 
many  a  beholder,  and  afford  pleasure  not  unlike  that  which 
many  persons  derive  from  looking  at  a  plan  of  a  mathematic- 
ally regular  city,  or  upon  gardens  architectonically  trimmed. 


even  as  they  change  from  time  to  time,  are  the  very  standard  of  French  pro- 
nunciation. 

Similar  remarks  may  be  made  regarding  the  courts.  The  court  of  Versailles 
dictated  in  every  sphere  at  the  time  when  Horace  Walpole,  the  whig,  wrote  that 
the  English  court  was  not  fashionable,  and  was  considered  little  better  than  a 
number  of  Germans  kept  there  for  some  useful  practical  end. 


394 


ON  CIVIL  LIBERTY 


But  freedom  is  life,  and  wherever  we  find  life  it  is  marked,  in- 
deed, by  agreement  of  principles  and  harmony  of  development, 
but  also  by  variety  of  form  and  phenomenon,  and  by  a  subor- 
dinate exactness  of  symmetry.  The  centralist,  it  might  be 
said,  mistakes  lineal  and  angular  exactness,  formal  symmetry, 
and  mathematical  proportions,  for  harmonious  evolution  and 
profuse  vitality.  He  prefers  an  angular  garden  of  the  times 
of  Louis  XIV.  to  an  umbrageous  grove. 

Centralism,  and  the  desire  to  bring  everything  under  the 
influence  of  government,  or  to  effect  as  far  as  possible  every- 
thing by  government,  has  fearfully  increased  from  the  moment 
that  the  imperatorial  absolutism  was  declared :  ^  wdiile,  at  the 
same  time,  a  degree  of  man-worship  has  developed  itself,  which 
makes  people  at  a  distance  almost  stand  aghast.  The  same 
hyperbolical,  and,  in  many  cases,  blasphemous  flattery,  which 
reminded  the  observer,  in  the  times  of  Napoleon  I.,  of  imperial 
Rome,  has  been  repeated  since.  No  one  who  has  attentively 
followed  the  events  of  our  times  stands  in  need  of  instances ; 
they  were  offered  by  hundreds,^  and  of  a  character  that  would 


'  According  to  the  latest  news,  even  the  dead  are  under  the  control  of  govern- 
ment, not  in  the  sense  of  Sydney  Smith,  by  paying  taxes,  but  no  one  can  any 
longer  be  buried  in  Paris  except  by  a  chartered  company,  standing  under  the 
close  inspection  of  the  police  department. 

^  Churchmen  and  laymen,  as  is  well  known,  vie  with  each  other  on  such  occa- 
sions. The  blasphemous  flattery  offered  by  some  dignitaries  of  the  church  to 
Napoleon  I.  was  revolting.  We  have  seen  the  same  when  there  seemed  to  be  a 
question  who  could  bid  highest  in  burning  incense  to  the  present  new  Caesar. 
The  Lord's  Prayer  was  travestied.  The  following  "  proclamation"  is  taken  from 
the  "  Concorde  de  Seine  et  Oise,"  of  October,  1852,  for  the  very  reason  that  it 
is  not  one  of  the  worst : 

"  Town  of  Sevres.     Procla7)iation  of  the  Empire, 

"  Inhabitants — Paris,  the  heart  of  France,  acclaimed  on  the  loth  of  May  for  its 
emperor  him  whose  divine  mission  is  every  day  revealed  in  such  a  striking  and 
dazzling  manner.  At  this  moment  it  is  the  whole  of  France  electrified  which 
salutes  her  savior,  the  elect  of  God,  by  this  new  title,  which  clothes  him  with 
sovereign  power :  *  God  wills  it,'  is  repeated  with  one  voice — '  vox  populi  vox 
Dei.'  It  is  the  marriage  of  France  with  the  envoy  of  God,  which  is  contracted 
in  the  face  of  the  universe,  under  the  auspices  of  all  the  constituted  bodies,  and 
of  all  the  people.     That  union  is  sanctified  by  all  the  ministers  of  religion,  and 


AND  SELF-GOVERNMENT.  395 

make  the  most  inveterate  former  tory-worship  of  the  crowned 
person  appear  as  an  innocent  blundering  ;  but  we  cannot  pass 
over  the  fact  that  an  infatuated  yet  large  part  of  a  nation  have 
for  the  first  time  in  history,  so  far  as  we  know,  called  ideas 
after  a  man  of  action.  "  Napoleonic  ideas"  has  become  a 
favorite  expression.  Not  only  newspapers  use  this  term — a 
late  one  condemned  free-trade  because  "  free-trade  is  no  Napo- 
leonic idea" — but  men  whom  we  have  been  accustomed  to 
look  upon  with  respect '  have  fallen  into  this  infatuation.  All 
of  us  have  heard  of  Christian  ethics,  Christian  ideas  and  sen- 
timents, but  we  have  never  heard  of  Carlovingian,  Frederician, 
Julian,  Alexandrian,  Gregorian  or  Lutheran  ideas.  It  is  a  sub- 
mission to  a  name,  an  individual — and  an  individual,  too,  be 
it  observed,  who  distinguished  himself  as  a  man  of  action, 
which  seems  to  indicate  a  singular  want  of  self-reliance  and 
self-respect. 

Centralized    governments    can  effect    certain  brilliant  acts, 


by  all  the  princes  of  the  church.  These  addresses,  these  petitions,  and  these 
speeches,  which  are  at  this  moment  exchanging  between  the  chief  of  the  state 
and  France,  are  the  documents  connected  with  that  holy  union ;  every  one 
wishes  to  sign  them,  as  at  the  church  he  would  sign  the  marriage-deed  at  which 
he  is  present.  Inhabitants  of  Sevres,  as  the  interpreter  of  your  sentiments,  I 
have  prepared  the  deed  v/hich  makes  you  take  part  in  this  great  national  move- 
ment. Two  books  are  opened  at  the  Mairie  to  receive  your  signatures :  one  of 
them  will  be  offered  in  your  presence  to  him  whom  I  from  this  day  designate 
under  the  title  of  emperor.  Let  us  hope  that  he  will  deign  to  accede  to  the 
supplications  which  I  shall  address  to  him  in  your  name,  to  return  to  the  palace 
of  St.  Cloud  through  our  territory,  by  the  gate  of  honor  which  we  possess.  The 
other  book,  which  I  shall  present  for  the  signature  of  the  prince,  will  remain  in 
your  archives  as  a  happy  souvenir  of  this  memorable  epoch.  Let  all  the  popu- 
lation, without  distinction,  come,  therefore,  and  sign  this  document;  it  sets  forth 
that  which  is  in  your  heart  and  in  your  will." 

This  document  is  accompanied  by  a  formal  proclamation,  appropriately  signed 
— "  Manager,  mayor." 

Plain  dealing,  however,  obliges  us  to  remember,  along  with  such  extravagances 
of  foreigners,  the  repulsive  flattery  in  which  some  individuals  indulged  when 
Kossuth  was  among  us.  Nor  must  we  wholly  forget  the  language  of  certain  daily 
journals  at  the  time  of  General  Jackson's  administration.  But  these  were  erratic 
acts  of  individuals,  and,  however  disgusting,  were  not  officially  received  by 
government. 

•  Mr,  Chevalier. 


39^ 


ON  CIVIL  LIBERTY 


but  they  are  on  this  account  seriously  Hable  to  fall  into  a 
method  of  carrying  on  public  affairs  which,  in  the  language 
of  stage  managers,  is  significantly  called  starring,  and  which 
has  the  serious  inconvenience  of  leading  popular  attention 
from  solid  actions  to  that  which  dazzles,  from  wholesome 
reality  to  mere  brilliant  ideas. 

The  elevation  of  Napoleon  III.  may  be  referred  in  a  measure 
to  this  error.  Huzzaing  crowds  are  never  substantial  indica- 
tions of  any  opinion,  whether  the  crowds  are  voluntary  or 
subpoenaed.  "  Where  are  my  enemies  ?"  said  Charles  II.  when 
he  re-entered  London  and  passed  through  the  crowd  of  his 
subjects.  He  had  enough.  Prince  de  Ligne  tells  us  that, 
when  Catharine  travelled  through  Crimea,  distant  populations 
were  carried  to  the  roadside  of  the  imperial  traveller,  to  wait 
on  her,  in  costumes  delivered  to  them  by  the  government,  and 
to  personate  the  inhabitants  of  show  villages  which  had  been 
erected  in  the  background.     These  sham  villages  are  typical. 

Still,  we  can  believe  that  many  persons  rushed  to  see  the 
present  emperor  when  he  travelled  through  France,  before  he 
made  himself  emperor,  because  they  really  believed  that  which 
had  been  so  often  repeated — that  Louis  Napoleon  "  had  saved 
society  and  civilization."  Now,  this  is  exactly  an  idea  which 
belongs  to  the  order  that  has  been  indicated. 

It  is  in  the  first  place  founded  upon  the  belief  that  if  civili- 
zation perishes  in  France  it  is  necessarily  lost  for  the  entire 
world.  It  would  certainly  produce  a  very  serious  shock  ;  but 
the  French  idea  of  one  leading  nation  is  an  anachronism.  It 
belongs  to  ancient  times ;  the  French  easily  fall  into  this  error, 
because  Paris  really  leads  France.  Civilization,  however, 
would  not  be  wholly  lost  even  for  France,  should  Paris  be 
destroyed ;  or,  if  it  were  so,  what  must  we  think  of  the  whole 
country  ? 

Secondly,  those  who  assert  that  Napoleon  HI.  saved  society 
mean,  it  must  be  supposed,  that  had  he  not  taken  the  reins  of 
absolute  power  the  socialists  would  have  destroyed  property, 
industry,  and  individuality. 

The  fear  which  the  socialists  have  inspired  must  have  been 


AND  SELF-GOVERNMENT.  397 

very  great,  and  doubtless  the  power  in  eveiy  individual  of 
doing  mischief  is  immense,  compared  to  that  of  doing  good. 
Even  an  insect  can  cause  a  leak  to  a  man-of-war ;  but  to  say 
that  a  single  man — such  a  man,  and  by  such  means — has  been 
the  savior  of  society,  is  at  once  so  monstrous  an  exaggeration, 
and  such  an  avowal  of  inability  to  act,  and  want  of  self-reli- 
ance, that  this  hyperbole,  if  it  be  not  altogether  an  error, 
would  have  led  to  no  such  results  with  any  nation  less  accus- 
tomed to  centralism,  absolutism,  and  an  absorbing  govern- 
ment. These  were  necessary  to  make  a  nation  so  rapidly, 
and  apparently  with  so  much  good-humor,  bend  to  all  the 
exorbitant  and  insulting  demands  of  absolutism,  to  which, 
unfortunately,  at  this  moment  the  French  nation  seems  to  bow 
with  a  peculiar  grace. 


0  ••"— ■ 


CHAPTER    XXXV. 


vox    POPULI    VOX    DEI. 


The  maxim  Vox  Populi  Vox  Dei  is  so  closely  connected 
with  the  subjects  which  we  have  been  examining,  and  it  is  so 
often  quoted  on  grave  political  occasions,  that  it  appears  to 
me  proper  to  conclude  this  work  with  an  inquiry  into  the 
validity  of  this  stately  saying.  Its  poetic  boldness  and  epi- 
grammatic finish,  its  Latin  and  lapidary  formulation,  and  its 
apparent  connection  of  a  patriotic  love  of  the  people  with 
religious  fervor,  give  it  an  air  of  authority  and  almost  of  sacred- 
ness.  Yet  history,  as  well  as  our  own  times,  shows  us  that 
everything  depends  upon  the  question  who  are  "  the  people," 
and  that  even  if  we  have  fairly  ascertained  the  legitimate  sense 
of  this  great  yet  abused  term,  we  frequently  find  that  their 
voice  is  anything  rather  than  the  voice  of  God, 

If  the  term  people  is  used  for  a  clamoring  crowd,  which  is 
not  even  a  constituted  part  of  an  organic  whole,  we  would  be 
still  more  fatally  misled  by  taking  the  clamor  for  the  voice  of 
the  deity.  We  shall  arrive,  then,  at  this  conclusion,  that  in  no 
case  can  we  use  the  maxim  as  a  test,  for,  even  if  we  call  the 
people's  voice  the  voice  of  God  in  those  cases  in  which  the 
people  demand  that  which  is  right,  we  must  first  know  that 
they  do  so  before  we  could  call  it  the  voice  of  God.  It  is  no 
guiding  authority;  it  can  sanction  nothing. 

"  The  chief  priests,  and  the  rulers,  and  the  people,"  cried 
out  all  at  once,  "  Crucify  him,  crucify  him  !"^  Were  then  "the 
rulers  and  the  people"  not  the  populus?  But  their  voice  was 
assuredly  not  the  vox  Dei  in  this  case.     If  populus  means  the 


'  St.  Luke,  xxiii.  13,  21. 


AND  SELF-GOVERNMENT. 


399 


constituted  people  speaking  through  the  organs  and  in  the 
forms  of  law,  the  case  of  Socrates  arises  at  once  in  our  mind. 
It  was  the  people  of  Athens,  speaking  by  their  constituted 
authorities,  that  bade  him  drink  the  hemlock ;  yet  it  would  be 
blasphemy  to  say  that  it  was  the  voice  of  God  that  spoke  in 
this  case  through  the  mouth  of  the  Athenians.  Was  it  the 
voice  of  the  people,  and,  through  it,  the  voice  of  God,  which 
demanded  the  sway  of  the  guillotine  in  the  first  French  revo- 
lution? Or  was  it  the  voice  of  God  which  made  itself  heard 
in  1848,  when  all  punishment  of  death  for  political  offences 
was  abolished  in  France  ?  Or  is  it  the  voice  of  God  which 
through  "  the  elect  one  of  the  people"  demanded  the  re-estab- 
lishment of  capital  punishment  for  high  political  offences  ? 
Or  is  it  the  voice  of  God  that  used  so  indefinite  a  term  in  law 
as  that  of  political  offences  ? 

There  are,  indeed,  periods  in  history  in  which,  centuries 
after,  it  would  seem  as  if  an  impulse  from  on  high  had  been 
given  to  whole  masses,  or  to  the  leading  minds  of  leading 
classes,  in  order  to  bring  about  some  comprehensive  changes. 
That  remarkable  age  of  maritime  discovery  which  has  influ- 
enced the  whole  succeeding  history  of  civilization  and  the 
tintire  progress  of  our  kind,  would  seem  at  first  glance,  and  to 
many,  even  after  a  careful  study  of  all  its  elements,  to  have 
received  its  motion  and  action  from  a  breath  not  of  human 
breathing.  No  person,  however,  living  at  that  period  would 
have  been  authorized  to  call  the  wide-spread  love  of  maritime 
adventure  the  voice  of  God,  merely  because  it  was  widely 
diffused.  Impulsive  movements  of  greater  extent  and  inten- 
sity have  been  movements  of  error,  passion,  and  crime.  It 
must  be  observed  that  the  thorough  historian  often  acts  in 
these  cases  as  the  natural  philosopher  who  finds  connection, 
causes  and  effects,  where  former  ages  thought  they  recog- 
nized direct  and  detached  manifestations  or  interpositions  of  a 
superior  power,  and  not  the  greater  attribute  of  variety  under 
eternal  laws  and  unchanging  principles. 

When  the  whole  of  Europe  was  animated  by  one  united 
longing  to  conquer  the  Holy  Land,  it  appeared  undoubtedly  to 


400 


ON  CIVIL  LIBERTY 


the  crusaders  that  the  voice  of  the  people  was  the  voice  of 
God.  It  seemed,  indeed,  as  if  an  afflatus  numinis  breathed 
over  the  European  lands.  Those,  however,  who  now  believe 
that  the  crusades  were  a  great  injury  to  Europe — and  there 
are  such — do  not  perceive  the  voice  of  God  in  this  vast  move- 
ment. They  will  perhaps  maintain  that  it  was  not  the  people 
who  felt  this  surprising  impulse,  but  the  chivalry,  who  by  their 
unceasing  petty  feuds  had  developed  a  martial  restlessness 
which  began  to  lack  food,  and  thus  engaged  in  distant  enter- 
prises, stimulated  by  the  highly  sacerdotal  character  which 
pervaded  that  age.  To  find  out,  then,  whether  it  was  the  vox 
populi,  would  first  require  to  find  out  whether  it  was  the  vox 
Dei,  and,  consequently,  we  are  no  better  off  with  the  maxim 
than  without  it.' 

I  am  under  the  impression  that  the  famous  maxim  first  came 
into  use  in  the  middle  ages,  at  a  contested  episcopal  election,' 


'  Sir  \Vm.  Hamilton  begins  the  third  paragraph,  page  770,  of  The  Works  of 
Thomas  Reid  on  the  Universality  of  the  Philosophy  of  Common  Sense,  in  this 
way: 

"I. — Hesiod  thus  terminates  his  Works  and  Days: 

^riiiT)  6'ovTuz  ■KUfiTTav  u7T6?J.vrat  tjv  nva  noTMi 
Aaol  (^rjfiLQyvai..     Qebg  vv  Tig  larl  koX  avTrj. 

"  The  Word  proclaimed  by  the  concordant  voice 
Of  mankind  fails  not ;   for  in  Man  speaks  God." 

"  Hence  the  adage? — Vox  Populi,  vox  Dei." 

It  is  well  the  learned  sage  added  the  query,  for,  historically  at  least,  the  V.  P. 
v.  D.  certainly  does  not  come  from  Hesiod. 

'  For  many  years  I  was  under  the  impression  that  I  had  found  this  fact  when 
studying  the  times  of  Abelard  ;  but  I  must  confess  that  all  my  attempts  to  recover 
it,  when  I  came  to  write  on  this  subject,  have  been  fruitless.  Sanderson,  whom 
Mr.  Hallam  calls  the  most  distinguished  English  casuist,  treats  of  the  maxim  in 
his  work  De  Conscientia.  I  copy  from  the  London  Notes  and  Queries,  Nov.  19, 
1853,  the  following  passage,  which  was  elicited  by  the  preceding  portion  of  this 
note: 

"  The  earliest  known  instances  of  the  use  of  the  saying  are,  by  William  of 
Malmesbury,  who,  speaking  of  Odo  yielding  his  consent  to  be  Archbishop  of 
Canteibury,  A.D.  920,  says,  Recogitans  illud  Proverbium, '  Vox  Populi,  x<ox  Dei ;* 
and  by  Walter  Reynolds,  Archbishop  of  Canterbury,  who,  as  we  learn  from 


AND  SELF-GOVERNMENT.  401 

when  the  people,  by  apparent  acclamation,  having  elected  one 
person,  another  aspirant  believed  he  had  a  better  right  to  the 
episcopate  on  different  grounds  or  a  different  popular  acclama- 
tion. That  the  maxim  has  a  decidedly  medieval  character  no 
one  familiar  with  that  age  will  doubt.  The  middle  ages  are, 
indeed,  characterized  by  the  fact  that  all  Europe  was  parcelled 
out,  not  in  states,  but  under  a  political  system  of  graduated  and 
encapsulated  allegiance ;  but  where  this  system  failed  to  reach 
a  sphere  with  its  many  ramifications,  the  same  age  bore  a  con- 
clamatory  character,  especially  in  the  earliest  times.  When  a 
king  was  elected  it  was  by  conclamation.  The  earliest  bishops 
of  Rome  were  elected  or  confirmed  by  conclamation  of  the 
Roman  people.  Elections  by  conclamation  always  indicate  a 
rude  or  deficiently  organized  state  of  things ;  and  it  is  the 
same  whether  this  want  of  organization  be  the  effect  of  primi- 
tive rudeness  or  of  relapse.  Now  the  maxim  we  are  consider- 
ing has  a  strongly  conclamatory  character,  and  to  apply  it  to 
our  modern  affairs  is  degrading  rather  than  elevating  them. 

How  shall  we  ascertain,  in  modern  times,  whether  anything 
be  the  voice  of  the  people  ?  and  next,  whether  that  voice  be 
the  voice  of  God,  so  that  it  may  command  respect?  For,  un- 
less we  can  do  this,  the  whole  maxim  amounts  to  no  more  than 
a  poetic  sentence  expressing  the  opinion  of  an  individual,  but 
no  rule,  no  canon. 

Is  it  unanimity  that  indicates  the  voice  of  the  people? 
Unanimity  in  this  case  can  mean  only  a  very  large  majority 
But  even  unanimity  itself  is  far  from  indicating  the  voice  of 
God.  Unanimity  is  commanding  only  when  it  is  the  result  of 
digested  and  organic  public  opinion,  and  even  then,  we  know 
perfectly  well  that  it  may  be  erroneous  and  consequently  not 
the  voice  of  God,  but  simply  the  best  opinion  at  which  erring 
and  sinful  men  at  the  time  are  able  to  arrive. 


Walsingham,  took  it  as  his  text  for  the  sermon  which  he  preached  when  Edward 
III.  was  called  to  the  throne  from  which  the  people  had  pulled  down  Edward  11 
The  reader  is  farther  referred  to  Mr.  G.  Cornewall  Lewis's  Essay  on  the  Influence 
of  Authority  in  Matters  of  Opinion,  (pp.  172,  173,  and  the  accompanying  notes,) 
for  some  interesting  remarks  upon  it." 

26 


402 


ON  CIVIL   LIBERTY 


Mr.  Say  informs  us  that  when  the  first  cotton  manufactures 
were  introduced  into  France,  petitions  from  all  the  incorpo- 
rated large  towns,  from  merchants  and  silk-weavers,  were  sent 
to  Paris,  clamoring  in  vehement  terms  against  the  "  ungodly- 
calico  prints."  Rouen,  now  the  busiest  of  all  the  French  cot- 
Ion  manufacturing  places,  was  among  the  foremost,  and  the 
petition  of  the  united  three  corporations  of  Amiens  ended 
thus :  "  To  conclude,  it  is  enough  for  the  eternal  prohibition 
of  the  use  of  printed  calicoes,  that  the  whole  kingdom  is  chilled 
with  horror  at  the  news  of  their  proposed  toleration.  Vox 
populi  vox  Dei."  This  might  well  be  considered  as  sufficient 
to  prevent  every  reflecting  man  from  using  the  maxim.  We 
now  know  that  the  cotton  tissue  has  become  one  of  the  great- 
est blessings  of  our  race,  giving  comfort,  health,  and  respect- 
ability to  entire  masses  of  men  formerly  doomed  to  tatters, 
filth,  and  its  fearful  concomitants,  typhus  and  vice,  and  we 
know  too  that  cotton  manufacture  is  one  of  the  most  lucrative 
branches  of  French  industry. 

Unanimity  of  itself  proves  nothing  worth  being  proved  for 
our  purpose.  In  considering  unanimity,  the  first  subject  that 
presents  itself  to  us  is  that  remarkable  phenomenon  called 
Fashion — a  phenomenon  wellnigh  calculated  to  baffle  the  most 
searching  mind,  and  which  has  never  received  the  attention  it 
deserves  at  the  hands  of  the  philosopher,  in  every  point  of  view, 
whether  psychological,  moral,  economical,  or  political.  Unas- 
sisted by  any  public  power,^  by  the  leading  minds  of  the  age, 
by  religion,  literature,  or  any  concerted  action,  it  nevertheless 
rules  with  unbending  authority,  often  in  spite  of  health,  com- 
fort, and  taste,  and  it  exacts  tributes  such  as  no  sultan  or  legis- 
lature can  levy.  While  it  often  spreads  ruin  among  producers 
and  consumers,  it  is  always  sure  to  reach  the  most  absolute 
czar  and  subject  his  taste.  Though  the  head  may  wear  a 
crown,  Fashion  puts  her  shears  to  its  hair,  if  she  has  a  mind 
to  do  so.     Far  more  powerful  than  international  law,  which 

»  It  may,  however,  be  itienlioned,  as  a  historical  fact,  that  even  fashion  has 
been  shrewdly  drawn  within  the  sjihere  of  public  action  and  influence,  by  the 
Emperor  Napoleon  III.,  through  his  graceful  empress. 


AND  SELF-GOVERNMENT.  403 

only  rules  between  nations,  she  brings  innumerable  nations 
into  one  fold,  and  that  frequently  the  fold  of  acknowledged 
folly.  How  can  we  explain  this  stupendous  phenomenon?  It 
is  not  necessary  to  do  so  here.  The  fact,  however,  must  be 
acknowledged.  It  is  the  most  remarkable  instance  of  una- 
nimity, but  will  any  one  say  that  Fashion  is  a  vox  Dei  ?  The 
veiy  question  would  be  irreverent  were  it  not  candidly  made 
in  a  philosophical  spirit. 

Nor  is  the  dominion  of  fashion  restricted  to  dress  and  fur- 
niture, nor  to  the  palate  and  minor  intercourse.  Bitter  as  the 
remark  may  sound,  it  is  nevertheless  true  that  there  are  coun- 
tries void  of  institutions,  where  a  periodical  on  political  fashions 
might  be  published,  with  the  same  variety  of  matter  as  the 
Petit  Courrier  des  Dames. 

There  was  a  fearful  unanimity  all  over  Europe  in  the  san- 
guinary and  protracted  period  of  witch-trials,  joined  in  by 
churchmen  and  laymen,  Protestant  and  Catholic,  Teuton,  Celt, 
and  Sclavonic,  learned  and  illiterate.  If  the  fallacious  and 
in  some  respects  absurd  "Quod  ab  omnibus,  semper,  ubique," 
ever  seemed  to  find  an  application,  it  was  in  the  witch-trial 
from  the  earliest  ages  of  history,  and  in  all  countries  down  to 
the  time  when  very  gradually  it  ceased  to  be  ab  omnibus, 
semper,  ubique.  But  was  Sprenger's  sad  Malleus  Maleficarum 
on  that  account  the  voice  of  God  ?'     What  fearful  fanaticisms* 


^  It  has  been  calculated  that  several  millions  of  human  beings  have  been  sacri- 
ficed by  witch-trials  in  modern  times.  [!]  An  article  in  the  Westminster  Review, 
January,  1859,  shows  that  the  belief  in  witches  is  yet  causing  occasional  disorder 
and  crime  in  England.  Indeed,  if  the  famous  Quod  omnibus,  etc.,  could  ever 
be  applied  to  any  subject,  it  is  to  this.  It  has  existed  and  still  exists  in  all  the 
corners  of  the  earth,  and  with  tribes  wholly  insulated.  There  has  been  always 
whipping  in  the  armies,  until  Always  ceased ;  there  was  always  slavery  until  it 
ceased  ;  a  multitude  of  gods  was  always  worshipped ;  ghosts  were  always  be- 
lieved in  ;  oracles  were  always  believed  in  ;  to  take  interest  from  the  borrower 
was  always  declared  a  crime;  it  was  always  believed  that  the  earth  is  flat  or 
that  the  sun  moves;  it  was  always  believed  that  Jews  poisoned  the  wells,  or  that 
some  general  distemper  whose  causes  could  not  be  explained  arose  from  poi- 
soned wells;  people  always  believed  that  governments  must  answer  for  famines; 
gold  was  always  believed  to  have  some  mysterious  power,  physical  as  well  as 
psychological ;  the  stars  were  always  believed  to  influence  the  character  of  indi- 


404 


ON  CIVIL  LIBERTY 


have  not  swept  over  whole  countries  with  deplorable  una- 
nimity!  The  Romans  were  unanimous  enough  when  they 
slaughtered  the  worshippers  of  that  God  whose  authority  is 
invoked  to  dignify  the  voice  of  men  in  the  fallacious  maxim. 
If  the  voice  of  the  people  were  the  voice  of  God,  the  voice 
of  the  people  ought  not  only  to  be  unchangeable,  but  there 
ought  to  be  one  people  only.  Two  nations  frequently  clamor 
for  war,  and  both,  under  the  motto  Vox  populi  vox  Dei,  draw 
the  sword  against  each  other. 

A  remarkable  degree  of  unanimity  prevails  in  all  those 
periods  of  excited  commercial  speculation,  such  as  the  Mis- 
sissippi scheme  in  France,  the  South  Sea  scheme  in  England, 
the  railway  mania  we  have  seen  in  the  same  country,  or  the 
commercial  madness  in  our  land  some  fifteen  years  ago. 

If  we  carefully  view  the  subject  of  unanimity,  we  shall  find 
that  in  the  cases  in  which  vast  action  takes  place  by  impelled 
masses — and  it  is  in  these  cases  that  the  maxim  is  invoked — 
error  is  as  frequently  the  basis  as  truth.  It  is  panic,  fanati- 
cism, revenge,  lust  of  gain,  and  hatred  of  races  that  produce 
most  of  the  sudden  and  comprehensive  impulses.  Truth  travels 


viduals;  kings  were  always  believed  to  have  a  peculiar  healing  power;  it  was 
always  believed  that  wealth  consists  in  money,  and  that  therefore  as  one  country 
gets  rich  others  must  needs  get  poorer,  or  that  in  the  same  degree  as  one  man 
increases  his  wealth  so  he  deprives  others  of  it ;  it  was  always  believed  that  the 
security  of  the  state  requires  the  masses  to  be  ground  down;  it  was  always  be- 
lieved that  the  eastern  continent  was  all  the  land  of  the  earth,  and  the  suspicion 
that  there  might  be  another  continent  was  even  declared  heretical ;  it  was  always 
believed  that  great  cleanliness  was  not  conducive  to  the  health  of  children;  it 
was  always  believed  that  indicted  persons  ought  to  be  tortured,  if  they  would 
not  confess  otherwise;  it  was  always  believed  that  persons  accused  of  treason  or 
witchcraft  ought  not,  on  account  of  the  "  heinousness  of  their  crimes,"  to  have 
that  protection  which  was  granted  to  other  indicted  prisoners — until  the  Always 
and  Everywhere  ceased.  These  errors,  most  of  which  have  caused  commotions, 
risings,  and  bloodshed,  were  certainly  the  opinion  of  the  people ;  they  were  the 
opinion  of  our  whole  race,  but  assuredly  not  the  vox  Dei. 

Wherever  a  Semper  et  ubique  exists,  such  as  it  is,  and  if  not  artificially  pro- 
duced, there  must  be  some  adequate  reason  for  it,  but  it  need  not  be  a  good  one, 
or  founded  in  truth.  When  the  semper  et  ubique  is  urged,  in  order  to  prove  a 
thing,  it  has  already  ceased  to  be  semper,  etc.  On  the  other  hand,  the  maxim 
ought  indeed  to  prevail  unless  there  is  good  reason  for  the  contrary  opinion. 


AND  SELF-GOVERNMENT. 


,405 


slowly.  Indeed,  all  essential  progress  is  typified  in  the  twelve 
humble  men  that  followed  Christ.  The  voice  of  God  was  not 
then  the  voice  of  the  people.  What  the  ancients  said  of  the 
avenging  gods,  that  they  are  shod  with  wool,^  is  true  of  great 
ideas  in  history.  They  approach  softly.  Great  truths  always 
dwell  a  long  time  with  small  minorities,  and  the  real  voice  of 
God  is  often  that  which  rises  above  the  masses,  not  that  which 
follows  them. 

But  the  difficulty  of  fixing  the  meaning  of  this  saying  is  not 
restricted  to  that  of  ascertaining  what  is  the  voice  of  God.  It 
is  equally  difficult  to  find  out  what  is  the  voice  of  the  people. 
If  by  the  voice  of  the  people  be  meant,  as  was  stated  before, 
the  organically  evolved  opinion  of  a  people,  we  do  not  stand 
in  need  of  the  saying.  We  know  we  ought  to  obey  the  laws  of 
the  land.  If  by  the  voice  of  the  people  be  meant  the  result 
of  universal  suffrage  without  institutions,  and  especially  in  a 
large  country  with  a  powerful  executive,  not  permitting  even 
preparatory  discussion,  it  is  an  empty  phrase ;  it  is  deception, 
or  it  may  be  the  effect  of  vehement  yet  transitory  excitement, 
or  of  a  political  fashion.  The  same  is  true  when  the  clamor- 
ing expression  of  many  is  taken  for  the  voice  of  the  whole 
people.'' 

In  politics,  as  in  other  spheres,  it  is  never  the  loudest  who 
are  the  wisest,  though  they  are  those  who  are  heard  and  whom 
flatterers  pretend  to  treat  as  the  people  and  as  the  utterers  of 
the  voice  of  God.  Governments  frequently  rule  nations  as 
some  of  the  French  theatres  are  ruled.  Paid  applauders, 
called  claqueurs,  force  many  a  piece  through  a  long  series  of 
performances ;  and  it  is  these  very  governments  of  claqueurs 
that  resort  most  frequently  to  the  Vox  populi  vox  Dei.  Yet 
Mademoiselle  Mars,  one  of  the  most  distinguished  French 
actresses  that  have  ever  played,  was  in  the  habit  of  saying, 
How  much  better  we  would  play  if  we  cared  less  for  applause ! 


*  Dii  laneos  habent  pedes. 

»  The  doctrine  Vox  Populi  Vox  Dei,  is  capable  of  development.  In  Novem- 
ber, 1857,  some  female,  addressing  a  crowd  in  the  city  of  New  York,  said  :  The 
voice  of  the  working-men  is  the  voice  of  God. 


4o6 


ON  CIVIL  LIBERTY 


Another  instance,  showing  that  no  dependence  can  be  placed 
upon  the  maxim,  is  that  of  proverbs.  They  are  doubtless  the 
voice  of  the  people,  and  many  of  them  contain  much  wisdom^ 
but  there  are  also  many  in  favor  of  our  worst  passions  and 
meanest  dispositions. 

The  following  rhymes  are  given  by  Trench  in  his  Lessons 
in  Proverbs,  as  "  of  an  old  poet :" 

"  The  people's  voice  the  voice  of  God  we  call ; 
And  what  are  Proverbs  but  the  people's  voice, 
Coined  first  and  current  made  by  public  choice  ? 
Then  sure  they  must  have  weight  and  truth  withal." » 

A  very  large  class  of  proverbs  is  directed  against  peasants 
and  the  laboring  classes ;  against  women,  lawyers,  physicians 
— indeed,  against  all  the  staple  topics  of  former  satire. 

Whoever  wishes  to  give  great  importance  to  a  general  move- 
ment, or  sincerely  believes  it  to  be  truly  noble,  calls  it  the 
voice  of  God.  Pope  Pius  IX.,  in  his  proclamation  of  the  30th 
of  March,  1848,  says,  in  speaking  of  the  general  and  enthusi- 
astic movement  of  the  Italians  for  Italy  and  Independence : 
"  Woe  to  him  who  does  not  discern  the  Vox  Dei  in  this  blast," 
etc.  It  cannot  be  supposed  that  the  pope  now  considers  that 
blast  to  have  been  the  Vox  Dei. 

Sometimes  the  maxim  is  doubtless  used  in  good  faith,  as 
the  French  at  times  use,  without  reserve,  that  favorite  expres- 
sion of  theirs  :  The  instinct  of  the  masses ;  but  generally,  I 
think,  Vox  populi  vox  Dei  is  used  either  hypocritically  or 
when  people  have  misgivings  that  all  may  not  be  right,  pretty 
much  in  the  same  manner  as  persons  say  that  an  argument  is 
unanswerable,  when  they  have  a  strong  foreboding  that  it  may 
'  be  found  very  answerable. 


'  Which  might  lead  to  this  syllogism  : 
Vox  Populi  Vox  Dei. 
Proverbs  are  the  voice  of  the  people, 
Hence  proverbs  are  the  voice  of  God ; 
There  are  many  wicked  proverbs. 
Ergo,  etc.  etc. 


AND  SELF-GOVERNMENT.  407 

Vox  populi  vox  Dei  has  never  been  used  in  France  so 
frequently  as  after  the  second  of  December,  yet  there  are 
unquestionably  thousands  in  that  country  who  would  find 
their  religious  convictions  much  bewildered,  if  they  were 
obliged  to  believe  that  it  was  the  voice  of  God  which  spoke 
through  ballot  boxes  under  the  management  of  the  most 
centralized  executive  in  existence ;  and  that  the  voice  of  the 
Deity  requires  a  thousand  intrigues  among  men  for  its  utter- 
ance. 

The  doctrine  Vox  populi  vox  Dei  is  essentially  unrepub- 
lican,  as  the  doctrine  that  the  people  may  do  what  they  list 
under  the  constitution,  above  the  constitution,  and  against  the 
constitution,  is  an  open  avowal  of  disbelief  in  self-govern- 
ment. 

The  true  friend  of  freedom  does  not  wish  to  be  insulted  by 
the  supposition  that  he  believes  each  human  individual  an 
erring  man,  and  that  nevertheless  the  united  clamor  of  erring 
men  has  a  character  of  divinity  about  it;  nor  does  he  desire  to 
be  told  that  the  voice  of  the  people,  though  legitimately  and 
institutionally  proclaimed  and  justly  commanding  respect  and 
obedience,  is  divine  on  that  account.  He  knows  that  the  ma- 
jority may  err,  and  that  he  has  the  right  and  often  the  duty 
to  use  his  whole  energy  to  convince  them  of  their  error,  and 
lawfully  to  bring  about  a  different  set  of  laws.  The  true  and 
stanch  republican  wants  liberty,  but  no  deification  either  of 
himself  or  others ;  he  wants  a  firmly  built  self-government 
and  noble  institutions,  but  no  absolutism  of  any  sort — none 
to  practise  on  others,  and  none  to  be  practised  on  himself"  He 
is  too  proud  for  the  Vox  populi  vox  Dei.  He  wants  no  divine 
right  of  the  people,  for  he  knows  very  well  that  it  means 
nothing  but  the  despotic  power  of  insinuating  leaders.  He 
wants  the  real  rule  of  the  people,  that  is,  the  institutionally 
organized  country,  which  distinguishes  it  from  the  mere  mob. 
For  a  mob  is  an  unorganic  multitude,  with  a  general  impulse 
of  action.*     Woe  to  the  country  in  which  political  hypocrisy 


»  The  subject  of  Mobs  has  been  enlarged  upon  in  the  Political  Ethics. 


4o8  ON  CIVIL  LIBERTY 

first  calls  the  people  almighty,  then  teaches  that  the  voice  of 
the  people  is  divine,  then  pretends  to  take  a  mere  clamor  for 
the  true  voice  of  the  people,  and  lastly  gets  up  the  desired 
clamor.  The  consequences  are  fearful,  and  invariably  unfitting 
for  liberty. 

Whatever  meaning  men  may  choose,  then,  to  give  to  Vox 
populi  vox  Dei,  in  other  spheres,  or,  if  applied  to  the  long 
tenor  of  the  history  of  a  people,  in  active  politics  and  in  the 
province  of  practical  liberty,  it  either  implies  political  levity, 
which  is  one  of  the  most  mordant  corrosives  of  liberty,  or 
else  it  is  a  political  heresy,  as  much  so  as  Vox  regis  vox  Dei 
would  be.  If  it  be  meant  to  convey  the  idea  that  the  people 
can  do  no  wrong,  it  is  as  grievous  an  untruth  as  would  be  con- 
veyed by  the  maxim,  the  king  can  do  no  wrong,  if  it  really 
were  meant  to  be  taken  literally. 

However  indistinct  the  meaning  of  the  maxim  may  be,  the 
idea  intended  to  be  conveyed,  and  the  imposing  character  of 
the  saying,  have,  nevertheless,  contributed  to  produce  in  some 
countries  a  general  inability  to  remain  in  the  opposition — that 
necessary  element  of  civil  liberty.  A  degree  of  shame  seems 
there  to  be  attached  to  a  person  that  does  not  swim  with  the 
broad  stream.  No  matter  what  flagrant  contradictions  may 
take  place,  or  however  sudden  the  changes  may  be,  there 
seems  to  exist  in  every  one  a  feeling  of  discomfort  until  he 
has  joined  the  general  current.  To  differ  from  the  dominant 
party  or  the  ruling  majority  appears  almost  like  daring  to 
contend  with  a  deity,  or  a  mysterious  yet  irrevocable  destiny. 
To  dissent  is  deemed  to  be  malcontent;  it  seems  more  than 
rebellious,  it  seems  traitorous  ;  and  this  feeling  becomes  ulti- 
mately so  general  that  it  seizes  the  dissenting  individuals 
themselves.  They  become  ashamed,  and  mingle  with  the  rest. 
Individuality  is  destroyed,  manly  character  degenerates,  and 
the  salutary  effect  of  parties  is  forfeited.  He  that  clings  to  his 
conviction  is  put  in  ban  as  unnational,  and  as  an  enemy  to  the 
people.  Then  arises  a  man  of  personal  popularity.  He  ruins 
the  institutions ;  he  bears  down  everything  before  him ;  yet  he 
receives  the   popular  acclaim,  and,  the  voice  of  the  people 


I 

AND  SELF-GOVERNMENT.  /  409  j 

being  the  voice  of  God,  it  is  deemed  equally  unnatiorial  and 
unpatriotic  to  oppose  him.' 

» The  Paris  journal,  Le  Pays,  informed  the  public,  at  the  time  the  present  em- 
pire was  established,  that  it  had  been  raised  to  the  dignity  of  an  official  paper  to 
the  imperial  government.  The  announcement  is  made  in  that  proclamatory  and 
sententious  style  so  much  relished  by  the  French,  and  in  one  of  the  paragraphs, 
standing  by  itself,  it  offers,  with  a  naivet6  which  surpasses  anything  the  writer 
can  remember,  this  comforting  assurance  : 

"  In  approaching  power  more  closely,  we  shall  not  cease  to  have  opinions." 

The  facts  that  it  is  the  "journal  of  the  empire,"  that  the  whole  article  is  short, 
that  every  sentence  seems  to  be  well  weighed  by  the  editor,  a  writer  of  note, 
and  that  the  declaration  was  made  on  a  very  important  occasion,  give  to  the 
whole  a  character  which  entitles  us  to  take  it  as  something  more  than  a  passing 
newspaper  sentence. 

When  the  maxim  Vox  populi  vox  Dei  prevails,  and  governments  change  in 
rapid  succession,  it  is  a  necessary  result  that  there  are  hosts  of  turncoats.  The 
French  published  in  1826,  or  thereabouts,  a  bitter  satire  on  this  herd  of  poli- 
ticians, consisting  of  a  work  called  Dictionnaire  des  Girouettes — literally  trans- 
lated, Dictionary  of  Weathercocks ;  but  Anglicized,  Dictionary  of  Turncoats. 
The  names  which  headed  the  biographies  in  the  book  were  succeeded  by  a 
number  of  symbolical  weathercocks  equal  to  the  number  of  political  somersets 
of  which  the  respective  persons  could  boast.  There  was  a  fearful  row  of  hiero- 
glyphical  vanes  after  some  names.  But  in  reading  this  droll  and  bitter  account 
relating  to  a  foreign  nation,  let  us  not  forget  St.  Luke,  vi.  41. 


APPENDIX. 


411 


APPENDIX  1. 


A    PAPER    ON    ELECTIONS,    ELECTION    STATISTICS,    AND     GENERAL 
VOTES    OF   YES    OR    NO. 

Conscientious  and  well-informed  men  may  possibly  differ  in 
opinion  as  to  the  question  whether  Cromwell  was  at  any  time  the 
freely  accepted  ruler  of  the  English  people;  whether  he  was  gladly 
supported  by  the  people  at  large  and  readily  acquiesced  in  by  a 
small  minority  ;  whether  he  imposed  himself  upon  the  country  by 
the  army  and  allayed  opposition  by  the  wisdom  of  his  statesman- 
ship ;  or  whether  he  chiefly  ruled  by  armed  fanaticism.  But  it 
may  be  asserted  without  hesitation,  that  there  is  neither  English- 
man nor  American,  substantially  acquainted  with  elections,  whose 
judgment  on  this  subject  could  be  influenced  in  any  degree,  one 
way  or  the  other,  were  he  informed  that  Cromwell  had  received 
an  overwhelming  majority  of  votes  all  over  England  confirming 
him  in  his  absolutism,  after  he  had  passed  his  famous  ordinance  of 
1655,  by  which  he  divided  the  British  territory  into  twelve  districts, 
each  presided  over  by  a  major-general  with  absolute  power  over 
the  inhabitants,  all  existing  laws  to  the  contrary  notwithstanding. 
There  is  not  an  American  or  Englishman,  I  think,  who  believes 
that  such  a  confirmatory  vote  could  have  added  to  his  right,  or  that, 
had  such  an  event  taken  place,  it  could  have  kept  Richard  Crom- 
well on  the  protector's  throne,  or  retarded  the  return  of  Charles 
the  Second,  a  single  day.  And  the  larger  the  majority  for  Crom- 
well should  have  been,  the  more  we  would  now  consider  it  as  a 
proof  of  the  activity  exerted  by  the  major-generals,  both  in  press- 
ing and  compressing,  but  no  one  of  us  would  connect  it  in  any  way 
with  a  presumed  popularity  of  Cromwell,  or  consider  it  as  an  index 
of  the  opinion  which  the  people  at  large  entertained  of  his  repeated 
making  and  unmaking  of  parliaments. 

A  real  or  pretended  result  of  such  ex  post  facto  votes  may  have 
a  certain  proclamatory  value ;  it  may  be  convenient  to  point  to  it 

413 


414 


ON  CIVIL  LIBERTY 


and  decline  all  farther  discussion  ;  ''The  People's  Elect"  maybe 
a  welcome  formula  for  ribboned  orators,  expectant  poets,  flr  time- 
serving editors ;  but  there  is  no  intrinsic  value  in  it.  Votes  of  this 
sort  have  no  meaning  for  the  historian,  at  least  so  far  as  the  subject 
voted  on  is  concerned,  and  they  have  a  melancholy  meaning  for 
the  contemporary  patriot.  There  seems  to  be  a  Nemesis  eagerly 
watching  these  votes,  and  each  time  proving,  by  events  succeeding 
shortly  after,  how  hollow  they  were  at  the  time. 

An  election,'  which  takes  place  to  pass  judgment  on  a  series  of 
acts  of  a  person,  or  to  decide  on  the  adoption  or  rejection  of  a 
fundamental  law,  can  have  no  value  whatever,  if  the  following 
conditions  are  not  fulfilled  : 

I.  The  question  must  have  been  fairly  before  the  people  for  a 
period  sufficiently  long  to  discuss  the  matter  thoroughly,  and  under 
circumstances  to  allow  a  free  discussion.  Neither  the  police  re- 
strictions of  government,  nor  the  riotous  procedures  of  mobs,  nor 
the  tyranny  of  associations  ought  to  prevent  the  formation  of  a 
well-sifted  and  duly  modified  average  public  opinion.  The  liberty 
of  the  press,  therefore,  is  a  conditio  sine  qua  non.  If  this  be  not 
the  case,  a  mere  general  opinion  of  the  moment,  a  panic  on  the 
one  hand,  or  a  maddened  gratitude,  for  real  or  imaginary  benefits, 
of  a  multitude  excited  for  the  day  or  the  period,  may  hastily  and 
unrighteously  settle  the  fate  of  generations  to  come,  and  passion, 
fear,  or  vain  glory  may  decide  thatwhich  ought  to  be  settled  by  the 
largest  and  freest  exchange  of  opinions  and  the  broadest  reciprocal 
modification  of  interests.  It  requires  time  for  a  great  subject  to 
present  itself  in  all  the  aspects  in  which  it  ought  to  be  viewed  and 
examined,  and  for  a  great  public  opinion  to  form  itself — the  more 
time,  the  vaster  the  subject.  All  the  laws  regulating  the  formation 
of  opinion  in  the  individual  apply  with  greater  force  to  the  forma- 
tion of  public  opinion. 

It  is  especially  necessary  that  the  army  be  in  abeyance,  as  it 
were,  with  reference  to  all  subjects  and  movements  appertaining 
to  the  question  at  issue.  The  English  law  requires  the  removal 
of  the  garrison  from  every  place  where  a  common  election  for 
parliament  is  going  on.  Much  more  necessary  is  the  total  neu- 
trality of  the  army  in  an  election  of  the  sort  of  which  we  now  treat. 

'  There  is  no  other  term  in  our  language,  although  it  is  obvious  that  these  pro- 
cesses cannot  be  properly  called  elections.     Votings  would  be  more  correct. 


AND  SELF-GOVERNMENT. 


415 


2.  The  election  must  be  carried  on  by  well-organized  election 
institutions,  extending  over  small  districts,  because  in  that  case 
alone  can  a  really  general  voting  be  secured. 

3.  All  elections  must  be  superintended  by  election  judges  and 
officers  independent  of  the  executive  or  any  other  organized  or 
unorganized  power  of  government.  The  indecency  as  well  as  the 
absurdity  and  immorality  of  government  recommending  what  is  to 
be  voted  ought  never  to  be  permitted. 

4.  The  election  returns  ought  to  be  made  so  that  they  are  not 
subject  to  any  falsification.  They  must  not  be  fingered  by  the 
government  officers.  This  is  especially  important  if  the  country 
labors  under  a  stringent  centralism  in  which  every  civil  officer 
avowedly  acknowledges,  and  is,  according  to  command,  bound  to 
acknowledge,  no  principle  or  law  above  the  direct  command  of  his 
immediate  superior ;  in  which  the  host  of  executive,  administrative, 
police  and  semi-military  officers  form  a  compact  body  receiving  its 
impulse  of  action  exclusively  from  one  centre;  in  which  publicity 
is  no  pervading  element  of  acts  relating  to  the  public  interest ;  and 
in  which  no  habits  have  yet  been  formed  nor  customs  settled  con- 
cerning the  whole  comprehensive  election  business. 

5.  He,  or  that  power,  which  passes  under  judgment,  ought  to  be 
in  a  position  that,  should  the  judgment  turn  against  him,  he  can  be 
believed  to  abide  by  the  judgment.  If  not,  the  whole  is  nothing 
but  a  farce. 

6.  There  must  be  really  two  things  to  choose  between.  If  this 
is  not  the  case,  the  whole  procedure  amounts  to  no  more  than  what 
we  familiarly  call  "  Hobson's  choice,"  on  a  gigantic  scale. 

If  there  be  any  reader  who  should  object  to  this  rule  that,  since 
we  speak  of  elections,  it  is  evident  that  there  must  be  two  things 
at  least  to  select  from,  and  that  therefore  this  rule  borders  on  the 
ridiculous,  I  would  only  say  that  history  shows  people  have  not 
always  adopted  it.  There  may  be  something  ridiculous  some- 
where, but  it  is  not  in  the  rule.  It  would  be  ridiculous  to  lay 
down  the  rule  that,  if  people  invite  others  to  dinner,  there  ought 
to  be  something  to  eat,  only  so  long  as  invitations  to  empty  tables 
are  assumed  not  actually  to  have  taken  place. 

7.  The  power  claiming  the  apparent  judgment  ought  not  to  have 
committed  a  criminal  act,  and  then,  as  the  law  expresses  it,  insist 
on  deriving  benefit  from  its  own  wrong.     Nor  ought  he,  who  pre- 


4i6  ON  CIVIL  LIBERTY 

tends  to  present  himself  for  judgment,  stand  in  the  position  of  a 
trustee,  disputing  the  validity  of  the  power  by  which  nevertheless 
he  has  acted,  and  under  which  he  has  accepted  benefits.  This  is  a 
common  rule  in  all  law,  because  it  is  common  sense,  and  it  is  for 
the  same  reason  a  sound  rule  in  politics.' 

In  addition  to  these  rules,  I  may  remind  the  reader  of  a  funda- 
mental truth  concerning  all  elections  and  votes — a  truth  which  is 
simply  prescribed  by  common  sense,  and  yet  has  often  been  set 
aside.  A  majority  having  voted  for  a  subject  is  of  no  earthly  value, 
unless  the  subject  be  of  such  a  character  that  there  can  be,  at  the 
time,  a  public  opinion  about  it.  If  there  were,  in  a  company  of 
men,  different  opinions  as  to  the  time  of  the  day,  we  cannot  solve 
the  difficulty  by  putting  the  question  :  "  All  who  are  in  favor  of  its 
being  now  six  o'clock  will  say  Aye ;  those  who  are  of  the  contrary 
opinion  will  say  No."  ^  No  majority  of  ever  so  vast  a  country  can 
decide  for  me  the  chloroform  question,  or  whether  Captain  Erics- 
son's steam  generator  be  or  be  not  practical.  And  no  majority,  no 
matter  how  overwhelming,  can  be  worth  anything  if  there  be  not, 
in  addition  to  a  proper  apparatus  of  evolving  public  opinion,  of 
which  we  have  spoken  already,  also  one  by  which  the  true  majority 
can  be  ascertained.  It  is  an  utter  and  constantly  recurring  error 
into  which  those  that  are  unacquainted  with  the  nature  and  the 
economy  of  liberty  fall,  to  believe  that  what  liberty  requires  is  the 
ascertainment  of  incoherent  votes  on  every  question  sprung  upon 
society  separately  and  incoherently.  A  French  paper  recently  said 
that  under  certain  circumstances  the  emperor  Napoleon  the  Third 
would  put  the  question  of  war  to  the  universal  suffrage  of  France. 
Of  course  I  do  not  believe  in  the  possibility  of  such  an  act,  but  I 
have  mentioned  the  statement  as  an  illustration.  How  can  the 
Frencn  people  at  large  decide  on  a  question  of  war  or  peace,  if 


'  This  has  been  well  pointed  out  in  the  case  of  Louis  Napoleon,  by  the  Hon. 
A.  P.  Butler,  United  Stales  senator  for  South  Carolina. 

»  In  the  time  of  the  late  French  so-called  republic,  it  occurred  in  the  little  com- 
mune Saint-Andre  (department  of  Nord)  that  in  a  new  church  one  of  three 
altars  remained  without  a  patron  saint.  There  were  three  candidates  :  St.  Joseph, 
St.  Roch,  and  St.  Cecilia.  The  priest  believed  that  the  question  had  best  be  left 
to  the  people.  All  voted,  even  women  and  children  of  discretion.  St.  Cecilia 
carried  the  election  by  a  majority  of  seventeen  votes.  The  old  Icelanders  some- 
times decided  by  vote  whether  Christ  or  the  old  gods  should  be  worshipped. 


AND  SELF-GOVERNMENT.  417 

France  cannot  debate  the  matter,  cannot  reflect  on  it?  and  what 
can  a  majority  of  votes  on  so  grave  a  question  mean,  when  the  whole 
management  of  the  vote,  from  first  to  last,  is  in  the  hands  of  that 
strongly  concentrated  government  which  puts  the  question  ? 

I  return  to  the  seven  requisites  which  I  have  pointed  out. 

If  any  one  of  these  conditions  be  omitted,  the  whole  election  or 
voting  is  vitiated,  and  can  in  no  way  be  depended  upon.  It  will 
go  with  every  experienced  and  truthful  citizen,  and  pass  with  every 
serious  historian,  for  nothing  more  than,  possibly,  for  skilfully 
arranged  deceptions  of  the  unwary  and  very  inexperienced.  It  is 
a  question,  indeed,  whether  these  conditions  can  be  frequently  ful- 
filled, and  whether  it  be  possible  in  the  nature  of  things  to  fulfil 
them  at  all,  or  any  of  them,  in  uninstitutional  countries — in  large 
countries  enmeshed  like  a  huge  being  by  the  close  net-work  of  a 
bureaucratic  mandarinism.  They  must,  then,  be  resorted  to  as 
rarely  as  possible.  In  strictly  organized  police  governments  they 
have  no  value,  except  for  the  very  purpose  of  deceiving,  or  of  giv- 
ing an  apparently  more  firmly-based  fulcrum  for  the  lever  of  the 
power  already  existing. 

Every  one  of  my  readers  will  agree  with  the  necessity  of  the 
condition  which  has  been  stated  as  the  first.  There  is  the  greatest 
difference  between  an  accidental  or  momentary  general  opinion, 
and  an  organically-produced,  well-settled  public  opinion  —  the 
same  difference  which  exists  between  a  **  decree  of  acclamation," 
as  those  decrees  in  the  first  French  revolution  were  called,  which 
were  proposed  and  forthwith  adopted  by  a  burst  of  feeling  or  a 
clamor  of  passions,  and  an  extensive  law  which  has  first  been  dis- 
cussed and  rediscussed,  called  for  and  assailed  in  papers,  pamphlets, 
meetings,  and  institutions,  and  then,  after  long  and  patient  debate, 
passed  through  the  entire  sifting  and  purposely  retarding,  repeti- 
tionary,  and  revisionary  parliamentary  process.  Real  public  opinion 
on  public  matters  of  a  truly  free  people  under  an  institutional  gov- 
ernment is  generally  the  wisest  master  to  which  the  freeman  can 
bow;  general  opinion  is  worth  nothing  as  a  political  truth.  It 
may  be  correct ;  it  may  be  vicious,  as  a  thousand  rumors  show, 
and  public  rumor  is  general  opinion.  This  subject  of  public  and 
merely  general  opinion  has  been  largely  discussed  in  the  Political 
Ethics. 

When  Cromwell  had  dissolved  parliament,  and  even  dissolved 

27 


4i8  ON  CIVIL  LIBERTY 

the  famous  council  of  state,  in  spite  of  Bradshaw's  opposition,  we 
are  informed  that  addresses  of  gratulation  and  thanks  reached  him 
from  all  parts  of  England,  just  as  they  were  crowded  upon  L.  N. 
Bonaparte  after  the  second  of  December,  1851.  We  cannot  judge 
whether  they  expressed  the  opinion  of  the  majority;  for  in  politics, 
as  in  common  life,  it  is  the  noisy  that  are  heard  and  make  them- 
selves observed,  while  the  majority  and  more  substantial  people  are 
silent  and  overlooked ;  but,  for  argument's  sake,  we  will  grant  that 
those  addresses  to  Cromwell  expressed  the  opinions,  the  views,  the 
feelings  of  the  majority  of  the  nation  at  the  moment.  Even  in 
this  case  they  expressed  nothing  more  than  the  existing  general 
feeling,  not  the  public  opinion  of  England,  as  successive  events 
very  soon  proved. 

To  seize  upon  loud  and  demonstrative  general  opinion  and  feel- 
ing of  a  part  of  the  people,  while  compressing  the  public  opinion 
of  the  whole,  is  a  frequent  means  of  successful  tyranny.  It  was 
the  way  the  first  French  convention  frequently  managed  things,  and 
Danton  knew  it  well.     He  acknowledged  it. 

As  to  the  second  and  subsequent  conditions  which  have  been 
enumerated,  the  following  observations  may  prove  of  interest. 
Numerous  and  extensive  inquiries,  referring  to  the  United  States 
as  well  as  to  Europe,  and  some  of  which  I  propose  to  give  to  the 
reader,  have  proved  to  me  certain  instructive  facts  relating  to  the 
statistics  of  popular  elections.  I  do  not  treat  in  this  paper  of  the 
voting  in  assemblies  of  trustees,  of  representatives  or  boards. 

I  must  also  remark  that  I  shall  always  use  the  term  election  for 
direct  elections,  in  which  the  voter  votes  directly  upon  the  ques- 
tion at  issue,  and  not  for  a  person  who  will  have  the  ultimate  right 
of  the  direct  vote;  either  for  a  person  or  on  a  measure.  The 
election  of  our  presidents  was  intended  to  be  a  double  election, 
and  in  form  it  continues  to  be  such ;  for  we  elect  electors.  But  it 
is  well  known  that  the  election  has  long  since  become  virtually  a 
direct  one,  so  far  as  the  individual  votes  express  the  desire  of  the 
voters,  because  the  persons  voted  for  as  electors  declare  beforehand 
for  whom  they  shall  vote  in  case  they  are  made  electors,  and 
after  being  elected  electors  they  do  not  become  members  of  a  de- 
liberative body  in  which  the  question  of  the  presidential  election  is 
discussed.' 


'  This  knowledge  of  the  vote  which  an  elector  will  give  does  of  course  not 


AXD  SELF-  C  O  VERNMENT. 


419 


Where  the  double  election  is  introduced  as  an  active  principle, 
It  deprives  elections  of  much,  and  often  of  all,  interest,  and  is  fre- 
quently resorted  to  for  this  very  purpose,  by  governments  which 
do  not  feel  sufficiently  strong  to  refuse  the  claims  of  the  people  to 
a  share  in  the  government,  yet  desire  to  defeat  the  reality  of  such 
a  share. 

The  following,  then,  are  the  positions  which  experience  seems 
fully  to  bear  out : 

The  more  exclusive  the  privilege  of  voting  is,  the  smaller  is 
the  ratio  of  qualified  voters  who  abstain  from  voting;  and  the 
largest  number  of  abstinents  occurs  where  universal  suffrage  is 
freely  left  to  itself,  and  not  interfered  with  by  the  executive. 

The  smaller  the  number  of  qualified  voters,  the  smaller  is  also 
the  ratio  of  abstinents. 

So  soon  as  the  number  of  qualified  voters  exceeds  five  or  six 
hundred,  the  number  of  abstinents  will  be  at  least  twenty-five  per 
centum. 

The  larger  the  number  of  qualified  voters,  voting  upon  the  same 
question  or  persons,  and  under  one  and  the  same  electoral  system, 
the  larger  is  also  the  ratio  of  abstinents. 

The  larger  the  area  over  which  one  and  the  same  election  or 
voting  extends,  the  larger  is  the  proportion  of  abstainers. 


affect  the  result.  Each  elector  represents  a  majority  and  a  minority,  but  his  vote 
can  only  be  cast  for  one  candidate.  Nevertheless,  that  which  is  called  the  popu- 
lar vote  indicates  a  proportion  between  the  presidential  candidates  very  different 
from  that  which  appears  from  the  official  votes  of  the  electors.  For  instance, 
the  popular  vote  at  the  last  presidential  election  stood : 

For  Pierce 1,504,471 

"    Scott 1,283,174 

"    Hale 148,851 

and  the  votes  of  the  electors  stood 

For  Pierce 254 

"    Scott 42 

So  that  the  popular  vote  stood : 

Pierce  to  Scott  as  132  to  loo. 
But  the  votes  of  the  electors  : 

Pierce  to  Scott  as  605  to  100. 

Such  men  as  Benton,  McDuffie,  Calhoun,  Huger,  Pickens,  of  N.  Carolina, 
have  recorded  their  opinion  in  favor  of  giving  the  election  of  the  president  to 
the  people. 


420 


ON  CIVIL   LIBERTY 


When  there  are  three  fairly  supported  candidates,  the  total  num^ 
ber  of  votes  polled  is  larger  than  when  there  are  but  two  candidates, 
all  other  things  being  equal. 

The  whole  number  of  polled  votes,  compared  to  the  number  of 
qualified  voters,  does  not  necessarily  indicate  the  interest  a  com- 
munity may  take  in  a  measure  or  person.  Whenever  people  feel 
perfectly  sure  of  the  issue,  there  are  many  who  abstain  because 
their  votes  will  not  defeat  the  opponent ;  and  many  others  abstain, 
because  their  candidate  will  be  elected  at  any  rate. 

If  the  number  of  qualified  voters  (voting  exactly  upon  the  same 
question  or  person)  exceeds  several  thousands,  one-half  of  it  is 
generally  a  fair  number  for  the  actual  voters ;  two-thirds  show  an 
animated  state  of  things,  and  three-fourths  are  evidence  of  great 
excitement.  It  will  be  observed  that  the  words :  Voting  exactly 
upon  the  same  question  or  person — are  a  necessary  qualification  of 
these  positions.  Although  an  election  all  over  England  may  turn 
upon  free  trade  or  protection,  yet,  if  it  be  a  parliamentary  election, 
so  that  these  questions  appear  only  represented  in  the  respective 
candidates,  it  is  clear  that  this  would  not  be  an  election  extending 
over  the  area  of  England,  in  the  sense  in  which  the  term  is  taken 
here,  or  in  which  we  take  it  when  we  speak  of  our  presidential 
election. 

Voting  upon  men  generally  draws  out  more  votes  than  voting 
upon  measures  themselves. 

Popular  votes  upon  measures  to  be  expressed  hy  yes  or  no  are 
wholly  fallacious,  unless  this  vote  be  the  last  act  of  a  long  and 
organic  process ;  for  instance,  if  a  new  constitution  has  been  pre- 
pared by  a  variety  of  successive  acts,  and  is  ultimately  laid  before 
the  people  with  the  question,  Will  you,  or  will  you  not,  have  it? 

Popular  votes  in  a  country  with  an  ample  bureaucracy  of  a  cen- 
tralized government,  on  questions  concerning  measures  or  persons 
in  which  the  government  takes  a  deep  interest,  and  by  elections 
the  primary  arrangements  of  which  are  under  the  direction  of  the 
government,  that  is,  under  the  executive,  must  always  be  received 
with  great  suspicion.  It  is  a  fact  well  worthy  of  remembrance, 
that  the  French  people  have  never  voted  no,  when  a  question 
similar  to  that  which  was  settled,  as  it  is  called,  by  the  election  of 
December,  1851,  was  placed  before  them.  In  the  year  1793,  in 
the  years  III.,  VIII.,  and  XIII.,  similar  appeals  were  made,  and  the 


AND  SELF-GOVERNMENT.  421 

answer  was  always  yes,  by  majorities  even  greater  than  that  on 
which  Louis  Napoleon  Bonaparte  rests  his  absolutism.  When  a 
senatus  consultum  raised  Napoleon  the  First  to  the  imperial  dignity, 
and  the  people  were  appealed  to,  there  were  in  the  city  of  Paris 
70  noes  and  120,947  ayes,  and  in  all  France  2500  noes  against 
3,572.329  ayes.  A  vote  of  j^i'  or  no  becomes  especially  unmean- 
ing when  the  executive  seizes  the  power  by  a  military  conspiracy, 
and  then  pretends  to  ask  the  people  whether  they  approve  of  the 
act  or  not. 

From  the  best  authorities  on  the  Athenian  government,  for  in- 
stance Boeckh's  Political  Economy  of  Athens,  and  Tittmann's  Polit- 
ical Constitutions  of  Greece,  under  the  head  of  Ostracism,  we  see 
that  the  common  vote,  polled  by  the  Athenians,  was  about  5000 
(Thucydides,  viii.  72)  out  of  from  20,000  to  25,000  qualified  voters. 
Six  thousand  votes  were  considered  the  largest  amount.  They 
were  required,  therefore,  for  extraordinary  cases,  such  as  ostracism, 
or  for  anything  that  was  against  established  law,  or  related  to  indi- 
viduals only.  Six  thousand  Athenian  votes  thus  practically  cor- 
responded to  our  two-thirds  of  votes  requisite  for  some  peculiar 
cases  purposely  removed  beyond  the  pale  of  a  simple  majority, 
that  is  at  least  one  more  than  one-half  of  the  voters.  Here,  then, 
we  have  one-fourth  of  qualified  voters,  usually  voting,  although 
the  voting  took  place  in  one  and  the  same  city  by  voters  the  great 
majority  of  whom  lived  in  the  city. 

Some  writers  have  doubted  whether  six  thousand  votes  upon  the 
whole  were  necessary  for  ostracism  and  other  peculiar  cases,  or 
six  thousand  votes  in  favor  of  the  measure.  I  have  no  doubt  that 
the  'first  was  the  case.  Plutarch  distinctly  says  that  one  of  the 
persons  proposed  was  always  ostracised,  provided  six  thousand 
votes  had  been  cast.'  (Aristides,  i.  7.)  The  same  passage  seems 
to  prove  that  if  six  thousand  votes,  altogether,  had  been  cast,  he 
who    had    the   plurality  of  votes  was   banished ;    for   there  were 


»  [Schomann,  Gr.  Alterth.,  i.  398,  considers  that  6000  was  the  number  neces- 
sary to  be  cast  against  any  one  person,  following  in  this  the  corrected  Schol.  on 
Aristoph.  Eq.  852,  (855.)  Plutarch,  not  a  first-rate  authority,  is  a  clear  witness 
on  the  other  side.  He  says  that  the  archons  counted  the  mass  of  votes,  and  if  in 
all  there  were  not  6000,  declared  that  nothing  had  been  done.  This  seems  on 
the  whole  most  probable.  It  is  not  clear  that  a  plurality  out  of  6000  decided  the 
Ktracism  of  one  who  had  been  voted  upon.] 


422 


ON  CIVIL  LIBERTY 


frequently  several  persons  proposed  for  ostracism,  or  citizens  knew 
that  they  were  prominent,  and  therefore  liable  to  fall  within  the 
ostracophory,  and  tried  to  prove  that  they  did  not  possess  the 
feared  influence.  Ostracism  was  a  purely  p>olitical  institution,  re- 
sorted to  by  democratic  absolutism  to  clip  prominences  and  keep 
the  hedge  on  a  level.  It  was  no  punishment,  and  until  Hyper- 
bolus,  a  low  fellow,  was  ostracised,  it  added  to  the  reputation  of 
a  citizen. 

That  there  were  many  abstainers  from  voting  in  Athens,  we 
know  from  the  fact  that  on  the  one  hand  the  lexiarchi  sent  their 
toxotse  before  them  to  mark  with  red-powdered  cords  the  white 
garments  of  those  who  tarried,  so  that  the  lexiarchi,  six  in  number 
with  thirty  assistants,  might  deprive  them  of  the  tickets  by  means 
of  which  they  could  draw  pay.  In  this,  then,  the  Athenians  re- 
sembled the  early  inhabitants  of  New  England,  who  punished 
abstaining  from  voting  or  neglecting  to  send  a  written  vote.^ 

On  the  other  hand,  we  know  that  every  Athenian  of  the  age  of 
twenty  received  at  first  one,  then  three  oboli  for  attending  a  popu- 
lar assembly.     This  reward  was  called  ecclesiasticon. 

Why  there  should  have  been  at  Athens  so  many  more  abstainers 
than  generally  in  modern  times,  may  be  explained,  probably,  on  the 
ground  that  many  citizens  were  absent  as  soldiers,  that  many  lived 
in  the  country,  and  that  Athens  was  a  direct,  untempered,  de- 
mocracy. Where  the  democratic  absolutism  visibly  appears  every 
day  in  the  market,  people  get  tired  of  it.  Besides,  the  reason 
which  frequently  induces  so  many  of  our  best  people  to  abstain 
from  voting,  the  unwillingness  to  leave  business,  must  have  oper- 
ated very  strongly  in  Athens,  when  voting  was  so  frequent  and 
common.  Let  us  imagine  Boston  or  New  York  as  an  unmitigated 
democratic  city-state,  calling  ten  times  a  year  for  the  meeting  of 
the  citizens ;  does  any  one  believe  that  the  most  constant  voters 
would  come  from  the  workshops  and  the  ship-wharves  rather  than 
from  the  tippling-shops  and  filthy  lanes  of  vice? 

I  have  stated  already  that  I  have  directed  my  inquiries  to  elec- 
tion statistics  for  many  years,  and  over  a  very  large  space.  The 
reader  will  admit  that  I  can  give  a  few  instances  only. 

In  the  year  1834,  there  were  in  France  no  more  than  171,015 

'  See  the  Laws  of  New  Plymouth,  published  by  Authority,  Boston,  1836,  pp 
41  and  128. 


AND  SELF-GOVERNMENT.  423 

electors;  yet  129,211  only  were  polled  at  the  different  electoral 
colleges,  that  is  only  75  out  of  100  qualified  voters  availed  them- 
selves of  their  privilege.  So  there  were  in  1837  in  the  same  coun- 
try 198,836  qualified  voters,  and  151,720  votes  were  polled,  which 
makes  76  of  100. 

It  will  be  remembered  how  small  a  number  of  citizens  compared 
to  the  whole  population  were  entitled  to  vote.  The  number  of 
qualified  voters  at  each  electoral  college  was  very  restricted,  and 
the  voters  formed  a  privileged  class,  compared  to  the  other 
citizens. 

The  January  number  of  the  Edinburgh  Review  of  1852  contains 
a  list  of  sixty-four  English  election  districts,  with  the  numbers  of 
registered  or  qualified  voters,  and  of  the  actually  polled  votes  in 
each,  at  the  last  general  election.  The  districts  whose  qualified 
voters  amount  to  less  than  one  thousand  have  been  separated  by 
me  from  those  which  possess  more  than  one  thousand.  The  aver- 
age number  of  voters  of  the  first  class  was  500,  and  25  per  centum 
on  an  average  abstained  from  voting.  The  average  number  of 
qualified  voters  of  the  other  class  was  between  2000  and  3000,  and 
of  them  42  per  centum  abstained.  So  that,  if  there  be  about  500 
voters,  only  75  in  a  hundred  go  to  the  poll ;  if  there  be  about 
2500,  only  58  in  a  hundred  do  so. 

This  is  the  more  striking  if  it  be  considered  that  one  thousand 
entitled  voters  is  after  all  a  very  small  number  compared  to  those 
to  which  we  are  accustomed,  and  that  far  the  greater  part  of  the 
elections  given  in  the  mentioned  table  are  town  elections,  or  elec- 
tions with  the  most  easily  accessible  polls. 

After  the  chief  part  of  this  paper  had  been  written,  a  very 
striking  fact  corroborated  the  results  at  which  I  had  arrived. 
The  Edinburgh  Review  for  October,  1852,  contains  an  article  on 
Representative  Reform,  in  which  there  is  "A  Table  showing  the 
Number  of  Counties  and  Boroughs  in  England,  Wales,  and  Scot- 
land, in  which  Contested  Elections  have  taken  place  in  the  year 
1852."  Where  an  election  afterwards  contested  takes  place,  it 
will  be  allowed  that  generally  there  must  be  great  excitement.  All 
voters  are  brought  up  over  whom  the  candidates  or  their  agents 
have  any  influence.  Yet  it  appears  from  this  table  "that  the 
registered  voters  in  all  the  contested  places  reached  507,192,  while 
those  who  recorded  their  votes  did  not  exceed  312,289,  or  about 


424 


ON  CIVIL  LIBERTY 


60  per  cent  of  the  whole."  This  is  very  remarkable;  for  out  of 
175  places  or  counties  whose  elections  were  contested,  46  only- 
numbered  3000  qualified  voters  or  more. 

The  whole  election  to  which  all  these  statistics  refer  was  that 
between  the  adherents  to  the  administration  of  Earl  Derby,  and 
those  who  considered  it  an  incumbrance  to  the  country.  The  con- 
test was  between  Free  Trade  and  Protection,  and,  I  suppose,  the 
English  would  plainly  call  it  an  excited  election. 

I  pass  over  to  instances  not  less  striking,  belonging  to  our  own 
country. 

According  to  detailed  official  documents,  giving  the  number  of 
qualified  voters  in  every  township  in  Massachusetts,  and  the  num- 
ber of  votes  actually  polled  during  the  election  of  the  governor  of 
that  state  in  1S51,  an  election  of  unusual  excitement,  there  were 
182,542  persons  entitled  to  vote,  and  131,187  votes  actually  re- 
ceived. This  gives  less  than  three  out  of  four  qualified  voters,  or 
less  than  75  in  a  hundred.  If  we  consider  that  Massachusetts  is 
no  extensive  country ;  that  it  is  more  densely  peopled  than  France, 
having  127.40  inhabitants  to  the  square  mile,  while  France  has 
only  about  125  ;  that  the  roads  are  good  and  numerous  ;  that  the 
people  are  well  trained  in  the  whole  election  business ;  and  that, 
as  it  has  been  stated,  the  excitement  was  very  great,  it  furnishes  us 
with  a  striking  piece  of  evidence  that  the  electoral  barometer  will 
hardly  ever  rise  above  75  in  a  hundred.' 

There  cannot  be  a  more  deeply  interesting  election  than  that 
which  took  place  in  the  year  185 1  in  South  Carolina,  in  which  the 

'  In  Letter  VIII.  of  Silas  Steadfast  (believed  to  have  been  George  S.  Hillard) 
en  the  proposed  change  of  the  constitution  of  Massachusetts,  it  is  said :  "  In 
point  of  fact,  no  governor  of  Massachusetts  was  ever  chosen  by  a  majority  of  all 
the  existing  votes P 

In  November,  1853,  when  great  excitement  about  the  new  constitution  existed 
in  Massachusetts,  the  vote  for  governor  (who  was  voted  for  at  the  same  time) 
stood  thus : 

Whig 66,759 

Freesoil  Democrat 35.779 

National  Democrat 5!470 

Freesoil 29,897 

Scattering 224 

138,129 
which  resembles  closely  the  vote  of  185 1. 


A XD  SELF-  G  O  VERNMENT. 


425 


palpable  question  was,  shall  or  shall  not  the  state  secede  from 
the  Union?  The  political  existence  of  the  state  formed  the  issue. 
On  that  occasion  42,755  votes  were  polled,  which,  taking  one- 
fourth  of  the  white  population  as  the  number  of  qualified  voters, 
would  show  that  about  two-thirds  only  of  those  who  had  a  right 
to  vote  actually  did  vote,  or  that  66  out  of  a  hundred  went  to  the 
poll. 

Connecticut,  a  small  and  densely  peopled  state,  sent,  at  the  very 
excited  election  of  1852,  about  75  or  76  out  of  each  hundred  voters 
to  the  poll.  The  calculation  has  been  made  from  the  official  elec- 
tion returns,  and  taking  one-fourth  of  the  population  as  entitled  to 
vote,  which  I  have  found  to  be  the  average  number,  where  univer- 
sal suffrage  exists. 

These  instances  might  be  greatly  multiplied  from  statistical  ma- 
terials collected  by  me.  I  may  only  add  the  proportion  of  ab- 
stainers from  our  presidential  elections  since  1828.  I  have  estimated 
the  number  of  qualified  voters  by  calculating,  for  the  election  year, 
the  white  population,  according  to  the  annual  increments  given  by 
Mr.  Kennedy,  the  first  superintendent  of  the  United  States  Census 
for  1850,  and  dividing  that  number  by  four.*     I  have  called  the 


»  In  dividing  by  four  I  reduce  the  number  of  qualified  voters  in  the  United 
States  too  much,  as  will  appear  from  the  following  table,  abstracted  from  the 
American  Census  of  1850,  and  kindly  furnished  me  by  Mr.  De  Bow,  at  present 
superintendent  of  the  census  :         • 


States. 

Aggregate 
population. 

Total  males  20  years 
of  age  and  over. 

Ratio  to  the 
whole  population. 

Massachusetts 

994.514 

147.545 

370,792 

2,311,786 

1,980,329 

280,623 
40,563 
104,855 
572,284 
473.501 

3-54 

3-53 
4.04 
4.18 

Rhode  Island 

Connecticut 

Pennsylvania 

Ohio 

This  gives  an  average  ratio  of  3.784.  But  this  table  shows  the  proportion  of 
white  males  of  twenty  years  and  upwards,  while  a  person  acquires  the  right  of 
voting  with  his  twenty-first  year  only.  It  will  be,  therefore,  pretty  correct,  if  I 
take  one-fourth  of  the  whole  white  population.  In  several  states  colored  persons 
go  to  the  polls.  If  they  were  counted,  it  would  reduce  the  proportion  of  actual 
voters  to  the  number  of  qualified  voters ;  but  I  am  willing  to  take  one-fourth 
only. 


426 


ON  CIVIL  LIBERTY 


real  voters  in  the  table  votants,  and  the  qualified  voters  simply 
voters. ' 


Years, 

White 

Number  of 

Proportion  of 

population. 

votes  cast. 

votants  to  voters. 

1828 

10,537,378 

1,160,418 

0.44 

1832 

11,169,616 

1,290,468 

0,46 

1836 

12,117,968 

1,501,298 

0.50 

1840 

14,189,895 

2,402,659 

0.67 

1844 

15,469,287 

2,702,546 

0.69 

1848 

17,154,551 

2,874,712 

0.67 

1852 

20,027,899 

2,936,896 

0.58 

It  is  necessary  to  take  into  consideration  that  in  the  whole  south 
of  the  United  States  voting  is  a  right  of  a  privileged  class,  and  that 
the  proportion  of  abstainers  is  probably  much  smaller  than  it  would 
be  otherwise. 

Against  this  calculation,  however,  so  uniform  in  England,  here, 
and  in  France  in  former  times,  we  have  the  vote  of  seven  millions 
and  a  half  for  Louis  Bonaparte  in  1852,  when  France  was  asked 
whether  she  approved  of  his  breaking  through  oath  and  pledge, 
and  of  his  proffered  despotism,  annihilating  not  only  her  constitu- 
tion, which  indeed  was  more  than  a  frail  one,  but  all  the  progress 
she  had  made  in  representative  government,  all  her  liberties,  and 
all  her  civil  dignity,  and  submitting  her  fortunes  and  all  to  a  ruler 
who,  never  having  been  a  soldier,  tells  civilized  France  that  the 
history  of  armies  is  the  history  of  nations,  that  responsible  min- 
isters are  nothing  but  incumbrances,  and  that  France  desires  a 
government  which  receives  its  whole  impulse  from  one  man,' 

The  statement  which  the  government  of  the  president  of  France 


'  I  am  aware  that,  apparently,  Votare  has  not  been  used  in  Low  Latin  for 
voting.  Du  Cange  says  that  Votum  was  used  in  the  middle  ages  for  suffrage, 
hut  Votare  for  Vovere,  Spondere.  As  it  is,  however,  no  uncommon  case  in  the 
English  language  to  have  a  noun  and  an  adjective  which  is  not  derived  directly 
from  the  former  but  from  an  intermediate  though  "  missing"  verb,  which  would 
be  derived  from  the  noun,  did  it  exist,  I  feel  sure  the  reader  will  permit  me  to 
use  the  term  Votant,  in  a  language  in  which  brevity  is  often  considered  to  cover 
logical  and  etymological  sins. 

•  See  the  preamble  to  the  constitution  proclaimed  by  Louis  Napoleon 


AXD  SHLF-GOVERAWrEXT.  427 

officially  published  regarding  the  election  which  surrendered  every- 
thing to  the  unchecked  sway  of  the  despot  was  thus : 

Voted  Yes     ......  7,439,216 

Voted  No 640,737 

Annulled  votes 36,820 

Did  not  vote  at  all         .         .         .         .  372,599 

8,489,372 

Whatever  may  be  thought  of  the  suspiciously  small  number  of 
noes,  I  do  not  believe  that  there  is  a  man  living  who  knows  any- 
thing of  elections,  and  who  is  ready  to  accept  the  given  number 
of  abstinents  as  a  correct  statement.  According  to  the  official 
number,  between  four  and  five  persons  only  in  one  hundred 
abstained  from  voting,  or  were  prevented  by  illness,  absence  from 
home,  old  age,  and  the  like,  from  doing  so — a  number  utterly  in- 
credible, and  which,  it  must  be  believed,  would  have  been  allowed 
to  appear  much  larger  had  the  officials  who  managed  the  business 
been  acquainted  with  the  usual  number  of  abstinents.  The  minister 
of  state,  Mr.  Persigny,  stated  himself,  in  a  circular  letter  to  the 
prefects  at  a  later  period,  that  there  were  about  eight  millions  of 
voters  in  France.  This  agrees  pretty  well  with  the  common  rule 
of  taking  about  one-fourth  of  the  whole  population  as  the  number 
of  qualified  voters  where  universal  suffrage  exists.  There  must  then 
have  been  a  great  deal  of  manipulation  within  that  number.  This 
is  further  proved  when  we  consider  that,  according  to  the  official 
reports  of  the  commissioners  whom  the  chief  of  the  French  state 
sent  into  the  departments  to  see  who  of  the  political  prisoners  might 
be  pardoned,  many  thousands  were  actually  in  prison  at  the  time  of 
the  general  election.  Colonel  Espinasse  reports  that  in  the  depart- 
ments of  the  Lot  and  Garonne,  and  the  Eastern  Pyrenees,  there 
were  30,000  affiliated  socialists,  and  in  the  department  of  the 
Herault  60,000.  In  three  departments  alone  90,000  disaffected 
persons.  If  they  voted,  they  must  have  been  forced  by  the  police 
to  vote  for  the  coup  d'etat :  if  they  did  not  vote,  what  becomes  of 
the  given  number  of  abstinents  ?  But  there  is  another  fact  which 
shows  the  falsification  of  the  statement,  either  by  actually  falsify- 
ing the  numbers,  or  by  forcing  people  to  give  the  desired  vote,  01 
by  both. 

Algeria  is  not  so  directly  under  the  influence  of  the  police,  nor 


428  ON  CIVIL  LIBERTY 

could  the  statement  concerning  that  colony  be  so  easily  falsified. 
Accordingly  we  have  the  following:  Out  of  68, coo  voters  (the 
army  included)  50,000  abstained;  5735  voted  for  L.  N.  Bonaparte, 
and  6527  against  him.  Eighteen  thousand  only  seem  to  have 
voted  out  of  68,000,  not  even  29  in  100. 

I  think  this  will  sufficiently  show  how  little  reliance  can  be  placed 
upon  such  a  vote  in  a  centralized  country,  and  how  futile  it  is  to 
found  any  right  or  pretension  upon  it.  Votes,  without  liberty  of 
the  press,  have  no  meaning;  votes,  without  liberty  of  the  press,  and 
with  a  vast  standing  army,  itself  possessing  the  right  to  vote,  and 
considering  itself  above  all  law,  have  a  sinister  meaning;  votes, 
without  an  unshackled  press,  with  such  an  army,  and  with  a  compact 
body  of  officials,  whose  number,  with  those  directly  depending  upon 
them,  or  upon  government  contracts,  amounts  to  nearly  a  million, 
have  no  meaning,  whether  he  who  appeals  to  the  people  says  that 
he  leaves  "  the  fate  of  France  in  the  hands  of  the  people,"  or  not. 

This  paper  was  written,  with  the  exception  which  I  have  men- 
tioned, after  the  vote  on  the  coup  d'etat  had  been  given.  Since 
then,  the  plebiscitum,  making  Louis  Napoleon  emperor,  has  been 
added. 

The  vote  of  the  people  on  the  question  :  Shall,  or  shall  not, 
Louis  Napoleon  Bonaparte  assume  the  imperial  crown  ?  is  officially 
stated  to  have  been  thus : 

The  number  of  electors  inscribed  in  the  de- 
partments is    .         .         .         .         .         .       9,843,076 

The  number  of  the  land  and  naval  forces     .  360,352 


Total  of  voters    .... 

.     10,203,428 

This  number  is  thus  distributed  : 

Having  voted  yes        .... 

7,824,189 

Having  voted  no         ...         . 

253,115 

Votes  void  on  some  account  or  other  , 

63,326 

Abstinents 

2,062,798 

Total 

.     10,20-5,428 

This  shows  a  very  different  result  from  the  vote  on  the  coup 
d'etat.  It  gives  twenty-five  abstinents  in  a  hundred  ;  but  there  are 
other  points  not  easily  understood.  Of  thirty-one  persons,  one 
only  voted  no.     This  is  a  state  of  harmony  to  which  people  of  the 


AA'D  SELF-GOVERXMENT.  429 

Anglican  race,  with  all  their  calmer  temper,  we  venture  to  say, 
have  never  yet  attained.  It  is  equally  inexplicable  how,  of  a  popu- 
lation which,  in  1S51,  amounted  to  35,781,628,  there  can  be,  in 
the  year  1852,  as  many  as  10,203,428  authorized  to  vote,  or  males 
above  twenty-one  years  old.  The  fourth  part  of  35,781,628  is 
only  8,945,407;  and,  if  a  fourth  part  is  correct,  there  would  be 
1,258,021  unaccounted  for.  Nor  can  we  forget,  here,  the  immense 
number  of  persons  who,  according  to  official  reports,  are  at  any 
given  moment  in  the  prisons  of  France.  These,  too,  must  be 
deducted. 

I  add,  in  conclusion,  the  statement  of  a  Paris  paper,  which  gives 
a  different  account,  so  far  as  that  city  is  concerned. 

In  Paris,  the  number  of  abstinents  were : 

In  1848,  for  the  presidential  election      .         .0.25 
In  185 1,  for  the  ratification  of  the  coup  d'etat, 
and   the  election  of  the  president  for  ten 
years  .         .         .         .         .         .         .0.20 

In  1852,  for  the  imperial  crown      .         .         .0.14 

Only  about  one-half  as  many  abstained  from  voting,  when  the 
empire  was  to  be  re-established,  as  abstained  in  the  excited  times 
of  the  republic,  when  there  were  several  candidates.' 

I  do  not  believe  that  direct  money-bribery  exists  in  France  to 
any  great  extent.  Universal  suffrage,  it  would  seem,  would  pre- 
clude the  possibility.  But  indirect  bribery,  by  promises  of  promo- 
tion, or  allowing  shares  in  profitable  undertakings,  and,  above  all, 
intimidation,  positive  or  indirect,  I  believe  to  have  existed  in  the 

'  On  the  loth  of  December,  1848,  when  the  first  French  president,  for  four 
years,  was  voted  for : 

There  were  polled      .......     7,327,345 

Of  which  :  For  Louis  Napoleon  ....     5,434,226 

For  General  Cavaignac       ......     1,448,107 

"    Ledru  Rollin 376,119 

"     Lamartine    ........  17,910 

"     Changarnier         .......  4)70o 

Lost  Votes  ........  12,600 

France  contained,  in  the  year  1846,  35,400,486  inhabitants;  consequently,  in 
1S4S  there  were  about  9,000,000  of  authorized  voters;  and  7,327,345  having 
\.ned,  about  80  in  1 00  went  to  the  poll,  according  to  this  statement.  Yet  it 
r-ust  be  supposed  that  the  eagerness  to  go  to  the  ballot-box  was,  in  that  year, 
ii.uch  greater  than  after  the  coup  d'6tat. 


430 


ON  CIVIL  LIBERTY  AND  SELF-GOVERNMENT. 


largest  possible  extent.  We  may  certainly  assume  that  every 
government  officer,  or  person  connected  in  some  way  with  govern- 
ment, is  worth  his  four  or  five  votes  at  least — which  he  will  direct 
as  he  in  turn  is  directed  to  do  by  his  superiors,  or  he  loses  his 
place.'  Then,  we  must  take  into  account  the  influence  of  the 
priests  in  rural  communities,  or  of  the  bishops  in  general.  They 
openly  exerted  themselves,  by  word  and  letter,  in  favor  of  the  present 
emperor.  The  influence  of  the  prefects  and  sub-prefects  on  all 
occasions  of  election  is  uniform  and  perfectly  well  known,  generally 
quite  public,  and  the  annoyance  to  which  a  man  exposes  himself 
by  voting  a  ballot  not  agreeing  with  that  which  has  been  furnished 
by  the  government,  is  so  great  that  no  independence  exists  at 
French  elections,  except,  in  a  limited  degree,  sometimes  in  Paris 
itself,  on  account  of  its  dense  and  large  population,  although  the 
influence  of  the  court  and  government  is  there  also  the  greatest  on 
ordinary  occasions. 


»  The  reader  cannot  fail  to  remember  here  the  constitution  proposed  by  Mad. 
de  Stael  for  France,  after  the  Restoration,  and  which  was  to  consist  of  two 
paragraphs  only,  namely,  of  one  declaring  all  Frenchmen  to  be  government 
officers,  and  of  another,  providing  that  every  government  officer  should  have 
a  salary. 


APPENDIX  II. 


A    PAPER   ON    THE   ABUSE   OF   THE    PARDONING    POWER. 

This  paper  was  originally  a  report.  I  had  been  appointed  by  a 
meeting  of  the  Friends  of  Prison  Discipline,  without  being  present, 
the  chairman  of  a  committee,  which  was  requested  to  report  to 
the  next  meeting  on  "The  Pardoning  Privilege  and  its  Abuse." 
The  following  was  the  result  of  this  appointment.  The  legislature 
of  the  State  of  New  York  did  me  the  honor  of  publishing  it  as  a 
document ;  but  it  was  printed  so  incorrectly,  the  subject  is  of  such 
vital  interest  to  a  people  who  desire  to  live  under  the  supremacy  of 
the  law,  and  the  abuse  continues  in  many  parts  of  our  country  to 
so  alarming  an  extent,  that  I  do  not  hesitate  here  to  reproduce  the 
paper. 

The  pardoning  privilege  consists  in  the  authority  partially  or 
wholly  to  remit  the  penalty  which,  in  the  due  and  regular  course 
of  justice,  has  been  inflicted  for  some  offence.  A  pardon  is  always 
an  act  of  frustrating  that  common  justice  which  has  been  estab- 
lished by  law  as  the  best  means  of  protection  ;  a  nullification  of 
legal  justice.  It  is  the  only  power  in  modern  politics,  in  which 
the  supremacy  of  the  law  is  acknowledged  as  the  primary  condition 
of  liberty,  that  can  be  compared  in  any  degree  to  the  veto  of  the 
ancient  tribune.'  It  is  an  irregular  power,  depending  upon  irre- 
sponsible individual  will.     We  ought,  therefore,  clearly  to  be  con- 


»  An  inaccuracy  of  terms  has  in  the  case  of  the  veto  power  created  much  con- 
fusion. The  ancient  tribune  had  the  privilege  of  vetoing,  and,  a  so-called  vetoing 
power  being  ascribed  to  the  chief  magistrate  of  modern  constitutional  states, 
people  are  apt  to  confound  the  two,  and  attack  or  defend  them  on  common 
•grounds.  Yet  the  two  differ  materially.  The  Roman  tribune  [could  prevent  the 
passage  of  a  law  and  of  a  decree  of  the  senate  by  his  intercession  or  veto,  and 
he  could  by  his  atixilitim,  as  the  magistrate  originally  of  the  plebs,  obstruct  acts 
of  magistrates  judged  by  him  to  be  adverse  to  the  interests  of  the  plebs,  (and 
afterwards  of  the  populus,)  even  to  the  extent  of  arresting  them.     This  last  was 

431 


432  ON  CIVIL   LIBERTY 

vinced  of  its  necessity;  and  if  this  can  be  proved,  we  ought  to 
inquire  wliether  so  extraordinary  a  power  must  not  be  guarded  by 
proper  limitations,  especially  if  it  should  be  found  that  it  is  liable 
to  be  seriously  and  even  alarmingly  abused. 

In  order  to  understand  more  fully  the  whole  subject,  it  will  not 
be  amiss  if  we  endeavor  to  obtain  a  view  of  the  origin  of  this 
power,  and  to  see  why  it  is  that  everywhere  we  find  it  as  an  at- 
tribute of  the  chief  executive  power ;  whether  this  fact  must 
be  attributed  to  any  inherent  characteristics,  or  to  incidental 
circumstances. 

When  all  government  is  yet  mixed  up  with  the  family  relations, 
and  the  individual  views  of  the  ruler  alone  prevail,  he  pardons,  as 
a  matter  of  course,  whenever  he  sees  proper  and  feels  impelled  so 
to  do  ;  but  developed  despotism  over  extensive  states  takes  a  dif- 
ferent view.  Fear  of  insecurity  and  suspicion  of  disobedience  to 
the  commands  of  the  despot  often  lead  the  ruler  to  fence  himself  in 
with  a  strict  prohibition  of  applications  for  pardon.  That  which  a 
wise  people  does  for  virtuous  purposes  by  a  constitution,  namely, 
the  establishing,  in  calm  times,  of  rules  of  action  for  impassioned 
periods,  distrusting  their  own  power  of  resisting  undue  impulses, 
and  thus  limiting  their  power,  the  despot  does  from  fear  of  his  own 
weakness,  and  therefore  limits  his  own  absolute  power  that  he  may 
not  be  entrapped  into  granting  a  pardon  for  disobedience.   Chardin* 


their  original  power,  in  aid  of  which  their  inviolability  was  of  importance.]  But 
the  modern  veto  has  nothing  to  do  with  the  law  once  passed  ;  it  amounts  to  no- 
thing more  than  the  withholding  of  one  necessary  ingredient  to  pass  a  bill  into  a 
law.  In  governments  where  the  crown  has  the  concurrent  or  sole  initiative, 
either  house,  whose  consent  is  necessary  in  order  to  make  a  law,  may  be  said  to 
have  the  veto  power  against  the  crown  with  the  same  propriety  with  which  we 
call  the  power,  in  our  president,  of  withholding  his  approval  a  vetoing  power. 
The  president  can  never  interrupt  the  operation  of  a  law  once  made  a  law.  In 
the  case  of  pardoning,  however,  the  power  actually  amounts  to  a  tribunitial  veto. 
There  the  executive,  or  whoever  may  possess  the  pardoning  privilege,  actually 
stops  the  ordinary  operation  of  the  law.  A  man  has  been  laboriously  tried  and 
sentenced  according  to  the  course  minutely  laid  down  by  the  law,  and  another 
power  steps  in,  not  according  to  a  pi  escribed  course  or  process  of  law,  but  by  a 
pure  privilege  left  to  his  own  individual  judgment,  and  says:  I  prohibit;  and 
the  due  and  regular  course  of  law  is  interrupted  accordingly.  This  is  vetoing 
power  in  its  fullest  sense.  See  on  the  Veto,  in  chap.  xvii.  pp.  200,  201,  202,  of 
this  work. 

'  Voyage  en  Perse,  London,  16S6-1715. 


A  ND  SEL  F-CO  VERNMENT. 


433 


tells  US  that  in  his  time  it  was,  in  Persia,  highly  penal  to  sue  for 
pardon  for  one's  self  or  for  another  person  ;  the  same  was  a  capi- 
tal offence  under  the  Roman  emperors — at  least  under  the  tyrants 
among  them,  who  form  the  great  majority  of  the  fearful  list.  Still 
it  is  clear  that  the  last  and  highest  power,  the  real  sovereign  (not 
only  the  supreme)  power,  must  include  the  power  of  pardoning. 
As  in  Athens  the  assembled  people  had  the,  right  of  remitting 
penalties,'  so  does  the  civil  law  acknowledge  the  privilege  in  the 
emperor  who  was  supposed  to  be  the  sovereign,  and  acknowledged 
as  the  source  of  all  law.  Christianity  confirmed  these  views.  The 
mercy  of  the  Deity  is  one  of  its  chief  dogmas ;  mercy,  therefore, 
came  also  to  be  considered  as  one  of  the  choicest  attributes  of  the 
ruler,  who  on  the  one  hand  was  held  to  be  the  vicegerent  of  God, 
and  on  the  other,  the  sovereign  source  of  law  and  justice  ;  nor  can 
it  be  denied  that,  in  times  when  laws  were  yet  in  a  very  disordered 
state,  the  attribute  of  mercy  in  the  ruler,  and  the  right  of  pardon- 
ing flowing  from  it,  was  of  great  importance,  and,  upon  the  whole, 
probably  beneficial  to  the  people.  The  fact  that  the  pardon- 
ing power  necessarily  originated  with  the  sovereign  power,  and 
that  the  rulers  were  considered  the  sovereigns,  is  the  reason  why, 
when  jurists  came  to  treat  of  the  subject,  they  invariably  presented 
it  as  an  attribute  indelibly  inhering  in  the  crown.  The  monarch 
alone  was  considered  the  indisputable  dispenser  of  pardon  ;  and 
this  again  is  the  historical  reason  why  we  have  always  granted  the 
pardoning  privilege  to  the  chief  executive,  because  he  stands,  if 
any  one  visibly  does,  in  the  place  of  the  monarch  of  other  nations, 
forgetting  that  the  monarch  had  the  pardoning  power  not  because 
he  is  the  chief  executive,  but  because  he  was  considered  the  sover- 
eign— the  self-sufficient  power  from  which  all  other  powers  flow ; 
while  with  us  the  governor  or  president  has  but  a  delegated  power 
and  limited  sphere  of  action,  which  by  no  means  implies  that  we 
must  necessarily  or  naturally  delegate,  along  with  the  executive 
power,  also  the  pardoning  authority. 

Although  the  pardoning  power  has  always  existed,  and  has 
been  abandoned  by  ultra-despotism  for  the  sake  of  despotism  itself, 
yet  the  abuse  to  which  it  easily  leads,  and  the  appar<^nt  incon- 
gruity which  it  involves,  have  induced  many  men  of  deep  reflec- 
tion, in  ancient  as  well  as  in  modern  times,  to  raise  their  voices 


» 

*  Demosthenes  against  Timocrates. 
28 

ft 


434 


ON  CIVIL  LIBERTY 


against  it :  of  whom  we  may  mention  Plato  and  Cicero '  among 
the  ancients,  and  Pastoret,''  Servin,  Filangieri,  and  the  benevolent 
Beccaria  among  the  moderns.  The  latter,  the  pioneer  of  penal 
reform,  and  one  of  the  benefactors  of  mankind,  has  the  following 
remarkable  passage  i^ 

"As  punishments  become  more  mild,  clemency  and  pardon  are 
less  necessary.  Happy  the  nation  in  which  they  will  be  considered 
as  dangerous  !  Clemency,  which  has  often  been  deemed  a  suffi 
cient  substitute  for  every  other  virtue  in  sovereigns,  should  be 
excluded  in  a  perfect  legislation  where  punishments  are  mild,  and 
the  proceedings  in  criminal  cases  regular  and  expeditious.  This 
truth  may  seem  cruel  to  those  who  live  in  countries  where,  from  the 
absurdity  of  the  laws  and  the  severity  of  punishments,  pardons  and 
the  clemency  of  the  prince  are  necessary.  It  is,  indeed,  one  of  the 
noblest  prerogatives  of  the  throne ;  but  at  the  same  time  a  tacit 
disapprobation  of  the  laws.  Clemency  is  a  virtue  which  belongs 
to  the  legislator,  and  not  to  the  Executor  of  the  laws ;  a  virtue 
which  ought  to  shine  in  the  code,  and  not  in  private  judgment. 
To  show  mankind  that  crimes  are  sometimes  pardoned,  and  that 
punishment  is  not  a  necessary  consequence,  is  to  nourish  the  flat- 
tering hope  of  impunity,  and  is  the  cause  of  their  considering  every 
punishment  inflicted  as  an  act  of  injustice  and  oppression.  The 
prince,  in  pardoning,  gives  up  the  public  security  in  favor  of  an 
individual,  and  by  ill-judged  benevolence  proclaims  a  public  act 
of  impunity.  Let,  then,  the  legislator  be  tender,  indulgent,  and 
humane." 

Among  the  truths  of  this  passage  there  are  some  errors,  the  ex- 
hibition of  which  will  at  once  lead  us  to  the  consideration  whether 
the  pardoning  power,  having  already  been  admitted  as  an  ex- 
traordinary and  super-legal  one,  be  necessary  at  all  in  a  well  and 
liberally  constituted  government,  or  ought  to  be  suffered  in  a  com- 
munity which  acknowledges  the  sovereignty  of  the  law.  Beccaria 
says  that  clemency  should  be  excluded  in  a  perfect  legislation,  and 
that  pardon  is  a  tacit  disapprobation  of  the  law.  This  is  erro- 
neous. No  legislation  can  ever  be  perfect  in  the  sense  in  which  it 
is  taken  here,  namely,  operating  in  all  cases,  in  the  same  manner 
toward  exactly  the  same  end,  for  which  the  legislator  has  enacted 


»  Cicero  in  Verrem  7.  =>  Des  Lois  Penales. 

3  Crimes  and  Punishments,  chap.  46,  on  Pardons;  English  ""-anslation,  1807 


AND  SELF-  C O  VERNMENT. 


435 


the  law ;  because  the  practical  cases  to  which  the  laws  apply  are 
complex,  and  often  involve  conflicting  laws;  because  the  legislator, 
though  he  were  the  wisest,  is  but  a  mortal  with  a  finite  mind,  who 
cannot  foresee  every  combination  of  cases ;  because  the  changes  of 
society,  things,  and  relations  necessarily  change  the  effect  produced 
by  the  same  laws ;  and  because  the  law-maker  cannot  otherwise 
than  cast  the  rules  of  action,  which  he  prescribes,  in  human  lan- 
guage, which  of  itself  is  ever  but  an  imperfect  approximation  to 
that  which  is  to  be  expressed. 

Laws  cannot,  in  the  very  nature  of  things,  be  made  abstract 
mathematical  rules  ;  and  so  long  as  we  live  on  this  earth,  where 
we  do  not  see  "face  to  face,"  where  mind  cannot  commune  with 
mind  except  through  signs  which  have  their  inherent  imperfections, 
cases  must  frequently  occur  in  which  the  strict  and  formal  applica- 
tion of  the  law  operates  against  essential  justice,  so  that  we  shall 
actually  come  to  the  conclusion  that,  in  a  country  in  which  the 
sovereignty  of  the  laws  is  justly  acknowledged,  we  stand  in  need 
of  a  conciliatory  power  to  protect  ourselves  against  a  tyranny  of 
the  law,  which  would  resemble  the  bed  of  Procrustes,  and  would 
sometimes  sacrifice  essential  justice  as  a  bleeding  victim  at  the 
shrine  of  unconditional  and  inexorable  law  itself.  It  is  to  these 
cases,  among  others,  that  the  adage  of  the  jurists  themselves  ap- 
plies:  Summum  jus,  summa  injuria.  We  take  it  then  for  granted 
on  all  hands,  that,  justice  being  the  great  end  of  all  civil  govern- 
ment, and  law  the  means  to  obtain  it,  the  pardoning  power  is  neces- 
sary in  order  to  protect  the  citizen  against  the  latter,  whenever, 
in  the  peculiar  combination  of  circumstances,  it.  militates  with  the 
true  end  of  the  state,  that  is,  with  justice  itself.  But  it  is  equally 
true  that  the  supremacy  of  the  law  requires  that  the  extraordinary 
power  of  pardoning  be  wielded  in  the  spirit  of  justice,  and  not 
according  to  individual  bias,  personal  weakness,  arbitrary  view,  or 
interested  consideration  ;  a  truth  which  is  the  more  important  in 
our  country,  because  the  same  principles  which  make  us  bow  before 
the  law  as  our  supreme  earthly  ruler,  also  bring  the  magistrate  so 
near  to  the  level  of  the  citizen  that  he  who  is  invested  with  the  par- 
doning power  is  exposed  to  a  variety  of  influences,  individual  and 
political,  which  have  a  powerful,  and  often,  as  practice  shows,  an 
irresistible  eff'ect,  although  there  is  no  inherent  connection  between 
them  and  the  cases  to  which  the  pardon  is  applied — influences, 
therefore,  which  in  this  respect  are  arbitrary  or  accidental.     All 


43^ 


ON  CIVIL   LIBERTY 


arbitrariness,  however,  is  odious  to  sterling  freedom  in  general,  and 
the  arbitrary  use  of  the  pardoning  power  and  its  frequency  pro- 
duce the  most  disastrous  consequences  in  particular. 

It  unsettles  the  general  and  firm  reliance  on  the  law,  an  abiding 
confidence  in  its  supremacy,  and  a  loyal  love  of  justice. 

It  destroys  the  certainty  of  punishment,  which  is  one  of  the  most 
important  and  efficacious  elements  in  the  whole  punitory  scheme ; 
and  it  increases  the  hope  of  impunity,  already  great,  in  the  crimi- 
nally disposed,  according  to  the  nature  of  man  and  the  necessary 
deficiency  even  of  the  best  contrived  penal  systems. 

It  endangers  the  community,  since  it  is  perfectly  true  what  the 
prince  of  poets,  in  his  great  wisdom,  has  said  : 

Mercy  is  not  itself,  that  oft  looks  so ; 
Pardon  is  still  the  nurse  of  second  woe. 

It  interferes  most  effectually  with  the  wise  objects  of  reform 
which  our  penitentiary  systems  aim  at ;  for  all  men,  practically  ac- 
quainted with  their  operation,  are  agreed  that  reform  never  fairly 
begins  in  a  convict  before  he  has  calmly  made  up  his  mind  to  sub- 
mit to  the  punishment,  and  so  long  as  a  hope  of  pardon  leads  his 
thoughts  from  the  prison-cell  to  the  anticipated  enjoyment  of 
undue  enlargement — a  phenomenon  easy  to  be  accounted  for  upon 
psychological  grounds. 

It  induces  large  numbers  of  well-disposed  persons,  male  and 
female,  from  a  superficial  feeling  of  pity,  to  meddle  with  cases  of 
which  they  have  no  detailed  knowledge,  and  with  a  subject  the 
grave  importance  of  which  has  never  presented  itself  to  their 
minds.  At  times  it  induces  persons  to  seek  for  pardons  on  frivo- 
lous grounds,  and  leads  communities  to  trifle  with  law,  justice,  and 
government.' 

It  largely  attracts  to  the  community,  in  which  the  pardoning 
power  is  known  to  be  abused,  criminals  from  foreign  parts  where 
such  an  abuse  does  not  exist ;  it  imports  crime. 

It  makes  every  sentence,  not   pardoned,  an  unjust  one ;  for,  in 


'  At  the  beginning  of  1858  it  appeared  from  certain  documents  published  in 
California,  that  a  petition  to  the  governor,  numerously  signed  by  citizens  of  Mon- 
terey, to  pardon  one  Jose  Anastasia,  under  the  sentence  of  death,  claimed  the 
pardon  on  the  ground  that  Jose  was  the  only  fiddler  in  Monterey  that  understood 
properly  to  play  for  dancing. 


AND  SELF-GOVERNMENT.  437 

matters  of  state,  every  act  should  be  founded  on  right  and  equal 
justice.'  No  one,  therefore,  has  the  right,  whatever  his  power  may 
be,  to  extend  a  favor  to  one  without  extending  it  to  all  equally 
situated,  and,  consequently,  equally  entitled  to  the  favor.  The 
doctrine  of  Dr.  Paley,  of  "assigning  capital  punishment  to  many 
kinds  of  offences,  but  inflicting  it  only  upon  a  few  examples  of  each 
kind,"  which  he  actuallj'  calls  one  of  the  "  two  methods  of  admin- 
istering penal  y^x//V^,"  amounts  to  revolting  monstrosity  if  prac- 
tically viewed,  and  to  an-  absurdity  in  a  philosophical  and  scientific 
point  of  view. 

It  adds,  with  the  very  commonly  annexed  condition  of  expatria- 
tion, the  flagrant  abuse  of  saddling,  in  an  inhuman,  unchristian, 
and  unstatesmanlike  manner,  neighboring  communities  with  crime, 
to  which  the  people  whose  sacred  and  bounden  duty  it  was  to 
punish  it  were  too  weak  and  negligent  to  mete  out  its  proper 
reward. - 

And  it  places  an  arbitrary  power  in  the  hands  of  a  single  indi- 
vidual, or  several  individuals,  in  stafes  where  all  arbitrary  power  is 
disclaimed,  and  allows  them  by  one  irresponsible  act  to  defeat  the 
ends  of  toilsome,  costly,  and  well-devised  justice  and  legislation, 
putting  the  very  objects  of  civil  government  to  naught. 

We  do  not  theorize  on  this  subject.  All  the  disastrous  effects 
of  the  abuse  of  the  pardoning  power,  whether  inherent  in  the 
power  itself,  when  unlimited  by  proper  restrictions,  or  arising  out 
of  a  state  of  things  peculiar  to  ourselves,  have  shown  themselves 
among  us  in  an  alarming  degree,  and  are  in  many  parts  of  the 
country  on  the  increase. 

For  the  proof  of  this  evil  state  of  things  we  appeal  to  every  one 
in  our  whole  country  who  has  made  penal  matters  the  subject  of 


'  Lord  Mansfield  is  reported  justly  to  have  remarked  to  George  III.,  who 
wished  to  save  the  Rev.  Dr.  Dodd  from  the  gallows,  to  which  he  had  been  sen- 
tenced for  forgei7 :  "  If  Dr.  Dodd  does  not  suffer  the  just  sentence  of  the  law, 
the  Perreaus  may  be  said  to  have  been  murdered."  Holliday's  Life  of  Lord 
Mansfield,  London,  I797i  P-  I49-  The  Perreaus  were  apothecaries  of  very 
high  standing,  but  had  been  hanged  for  forgery,  in  spite  of  the  most  weighty 
petitions. 

=  This  unhallowed  abuse  has  been  raised  into  a  law  by  Sir  George  Grey's 
Expatriation  Law,  passed  in  1847,  according  to  which  convicts  who  behave 
well  shall  be  pardoned  after  the  lapse  of  two-thirds  of  the  imprisonment  to 
which  they  had  been  originally  sentenced, /;-oi'/(/ifa' they  will  leave  the  country. 


43S 


av   CIVIL  LIBERTY 


earnest  inquiry ;  we  appeal  to  the  fact  that,  for  a  long  series  of 
years,  the  official  reports  of  persons  connected  with  prisons  and 
penitentiaries,  and  of  legislative  committees,  have  teemed  with 
complaints  of  the  mischievous  effects  of  the  pardoning  power;  we 
appeal  to  the  daily  papers,  near  and  far,  and  to  recent  occurrences 
in  one  of  our  most  prominent  states,  where  pardons  have  been 
granted  to  blood-stained  criminals  of  the  most  dangerous,  perse- 
vering, and  resolute  sort,  without  even  the  least  indication  of  their 
reform,  after  a  short  time  of  imprisonment,  which  had  already 
been  substituted  for  capital  punishment ;  we  appeal  to  the  statistics, 
whenever  they  have  been  collected,  from  official  documents,  on 
this  melancholy  subject ;  and,  lastly,  we  appeal  to  the  presentments 
of  grand  juries  in  several  states  of  our  Union,  in  which  the  fre- 
quency of  pardons  under  some  governors  has  been  called  by  the 
severe  yet  merited  name  of  nuisance. 

So  long  ago  as  the  year  1832,  Messrs.  de  Beaumont  and  de 
Tocqueville  showed,  in  their  work  on  the  penitentiary  system  in 
the  United  States,'  by  documents  and  statistical  tables,  the  fright- 
ful abuse  of  the  pardoning  power  in  the  United  States  in  general, 
and  the  additional  abuse,  naturally  resulting  from  the  circum- 
stances, that  pardon  is  more  liberally  extended  to  those  convicts 
who  are  sentenced  to  a  long  period  of  imprisonment,  or  for  life, 
than  to  less  criminal  persons.  We  refer  especially  to  the  2d  part 
of  the  i6th  note  of  the  appendix,  page  232  of  the  translation.  We 
are  aware  that  in  some,  perhaps  in  many,  states  of  the  Union,  the 
pardoning  power  has  been  used  more  sparingly  since  that  time; 
but  it  will  be  observed  that  there  is  no  security  against  a  return  to 
the  former  state  of  things ;  nor  is  the  effect  of  pardoning,  when  it 
is  rare,  yet  abused  in  a  few  glaring  cases,  which  attract  universal 
notice,  less  injurious ;  for  instance,  when  the  member  of  a  wealthy 
or  distinguished  family  is  pardoned,  although  guilty  of  a  well- 
proven  heinous  crime,  or  when  men  are  pardoned  on  political 
grounds,  although  they  have  committed  infamous  and  revolting 
offences.  Such  cases  have  a  peculiar  tendency  to  loosen  the  neces- 
sary bonds  of  a  law-abiding  and  law-relying  community,  which 
has  nothing  else,  and  is  proud  of  having  nothing  else,  to  rely  upon 
than  the  law. 

Many  years  ago  Mr.  M.  Carey  said,  in  his  Thoughts  on  Peniten- 


Tianslated,  with  many  additions,  by  Francis  Lieber,  Philadelphia,  1833. 


AND  SELF-GOVERNMENT.  439 

tiaries  and  Prisons :  "The  New  York  committee  ascertained  that 
there  are  men  who  make  a  regular  trade  of  procuring  pardons  for 
convicts,  by  which  they  support  themselves.  They  exert  them- 
selves to  obtain  signatures  to  recommendations  to  the  executive 
authority  to  extend  pardon  to  those  by  whom  they  are  employed. 
And  in  this  iniquitous  traffic  they  are  generally  successful,  through 
the  facility  with  which  respectable  citizens  lend  their  names,  with- 
out any  knowledge  of  the  merits  or  demerits  of  the  parties.  Few 
men  have  the  moral  courage  necessary  to  refuse  their  signatures 
when  applied  to  by  persons  apparently  decent  and  respectable,  and 
few  governors  have  the  fortitude  to  refuse." 

To  this  statement  we  have  now  to  add  the  still  more  appalling 
fact,  which  we  would  pass  over  in  silence  if  our  duty  permitted  it, 
that  but  a  short  time  ago  the  governor  of  a  large  state — a  state 
amongst  the  foremost  in  prison  discipline — was  openly  and  widely 
accused  of  having  taken  money  for  his  pardons.  We  have  it  not 
in  our  power  to  say  whether  this  be  true  or  not ;  but  it  is  obvious 
that  a  state  of  things  which  allows  suspicions  and  charges  so  de- 
grading and  so  ruinous  to  a  healthy  condition  of  public  opinion, 
ought  not  to  be  suffered.'  It  shows  that  leaving  the  pardoning 
privilege,  uncontrolled  in  any  way,  to  a  single  individual,  is  con- 
trary to  a  substantial  government  of  law,  and  hostile  to  a  sound 
commonwealth.' 

A  very  interesting  paper,  relating  to  the  subject  of  pardon,  was 
furnished  in  the  year  1846  by  the  secretary  of  state  of  Massa- 
chusetts, and  published  by  the  house  of  representatives  of  that 
commonwealth.     The  paper  is,  of  itself,  of  much  interest  to  every 


»  While  these  sheets  are  passing  through  the  press,  the  papers  report  that  the 
governor  of  a  large  state  has  pardoned  thirty  criminals,  among  whom  were  some 
of  the  worst  character,  at  one  stroke,  on  leaving  the  gubernatorial  chair.  What 
a  legacy  to  the  people !  Lord  Brougham  said  that  the  only  aim  of  counsel  for 
the  prisoner  was  to  get  him  clear,  no  matter  what  the  consequences  might  be. 
If  all  the  lawyers  acted  on  this  saying,  and  all  the  executives  as  the  mentioned 
governor,  Justice  might  as  well  shut  up  her  halls,  and  the  people  save  the  ex- 
penses which  they  incur  for  the  administration  of  justice.  It  is  paying  too  dear 
for  a  farce,  which  is  not  even  entertaining. 

*  In  some  of  the  worst  governments,  as  those  of  Charles  II.,  James  II.,  and 
Louis  XV.,  pardons  were  sold,  but  not  by  the  pardoning  ruler.  It  was  the  mis- 
tresses and  courtiers  who  carried  on  the  infamous  traffic,  though  the  monarchs 
knew  about  it. 


440 


ON  CIVIL  LIBERTY 


penologist ;  but,  when  we  consider  that  Massachusetts  justly  ranks 
amongst  the  best  governed  states  of  our  Union,  its  value  is  much 
enhanced  ;  for  we  may  fairly  suppose  t-hat  the  abuse  of  the  pardon- 
ing power  exists  in  many  of  the  other  states  in  no  less  a  degree. 
In  many,  indeed,  we  actually  know  it  to  exist  in  a  far  greater  and 
more  appalling  degree. 

From  this  document,'  we  have  arrived  at  the  following  results: 

There  were  imprisoned  in  the  state  of  Massachusetts,  from  the 
year  1807,  inclusive,  to  the  month  of  February,  1847,  in  the  state 
prisons,  convicted,  3850. 

Of  these  were  pardoned,  before  the  term  of  imprisonment  ex- 
pired, 460.  So. that  of  the  whole  were  pardoned  12  per  cent.,  or 
every  eighth  convict. 

The  average  time  of  remaining  in  prison  (of  these  460,)  com- 
pared to  the  time  of  their  original  sentence,  amounted  to  65  per 
cent.  In  other  words,  they  remained  in  prison  but  two-thirds  of 
the  time  of  imprisonment  imposed  upon  them  by  the  law  of  the 
state. 

Of  the  460  pardoned  convicts,  there  had  been  originally  sen- 
tenced to  the  imprisonment  of  ten  years,  or  more,  the  number  of 
49.  And  the  time  which  these  convicts  had  actually  remained  in 
prison,  compared  to  the  terms  of  their  original  conviction,  amounts 
to  60  per  cent.  ;  so  that  a  criminal  sentenced  to  ten  years,  or  more, 
had  a  better  chance  of  having  his  imprisonment  shortened,  than 
those  sentenced  to  a  period  less  than  ten  years,  in  the  proportion 
of  about  six  to  seven — in  other  words,  while  the  less  guilty  was 
suffering  a  week's  imprisonment,  the  prisoners  of  the  darkest  dye 
suffered  six  days  only. 

There  were  committed  for  life,  by  commutation  of  sentence,  and 
still  further  pardoned  at  a  later  period,  from  1815  to  1844  inclusive, 
seventy-five.  The  average  time  they  actually  remained  in  prison 
was  a  fraction  over  seven  years.  So  that,  if  we  take  twenty-five 
years  as  the  average  time  of  a  sentence  of  imprisonment  for  life, 
we  find  that  they  remained  in  prison  but  little  over  one-fourth  of 
the  time  which  had  been  allotted  to  them,  in  consequence  of  a  first 
pardon,  (twenty-five  per  cent.,)  or  the  executive  substituted  seven 
years'  imprisonment  for  death  decreed  by  law.  There  were  alto- 
gether, committed  for  life  by  commutation  of  sentence,   fifteen. 


'  House  of  Representatives,  of  Massachusetts,  1846,  No.  63. 


AND  SELF-  G  O  VERNMENT. 


441 


And,  as  we  have  seen  that  five  of  these  were  farther  pardoned,  we 
find  that  one-third  of  the  whole  were  pardoned  (thirty-three  per 
cent.)  It  does  not  appear  how  many  criminals  were  sentenced  to 
death,  and  what  proportion  thereof  had  their  sentences  commuted 
to  imprisonment  for  life. 

The  abuse  of  pardoning  in  the  state  of  Massachusetts  has,  how- 
ever, much  decreased  during  the  latter  part  of  the  period  through 
which  the  mentioned  report  extends ;  for,  according  to  a  table 
published  in  the  able  and  instructive  third  report  of  the  New 
York  Prison  Association,  1847,  P^g^  41  of  the  report  of  the  Prison 
Discipline  Committee,  we  find  that  from  1S35  to  1846  there  was 
pardoned  in  Massachusetts  one  convict  of  1,804;  while  our  state- 
ment shows  that  in  the  period  from  1807  to  1846  every  eighth 
convict  was  pardoned. 

We  beg  leave  to  copy  the  chief  result  of  the  table  just  men- 
tioned.' 


•  While  the  work  was  passing  through  the  press,  a  document,  published  by  the 
Massachusetts  convention  to  amend  the  state  constitution,  reached  the  writer. 
It  contains  "  A  List  of  Pardons,  Commutations  and  Remissions  of  Sentence, 
granted  to  Convicts  by  the  Executive  of  the  Commonwealth  for  the  ten  years 
including  1843  antl  1852."  Unfortunately,  this  important  paper,  which  contains 
the  names  of  the  persons,  sentences,  number  of  years  sentenced,  num!:)er  of  years 
remitted,  and  the  crimes,  does  not  give  any  classifications,  summings-up,  or  com- 
parisons with  the  number  of  senteiK;es  and  unremitted  punishments.  It  only  ex- 
hibits the  following  recapitulation  for  10  years  from  1843  to  1S52: 

Full  Pardons  ........  .36 

Remissions  .........     319 

Restorations  .........      103 

Commutations  ...  .....       35 

Total 483 

This  paper  will  doubtless  be  made  the  basis  of  very  instructive  statistical  cal- 
culations, and  it  is  greatly  to  be  desired  that  other  states  would  follow.  As  it  is, 
I  am  incapable  of  giving  at  this  moment  any  other  information.  It  would  require 
other  documents,  which  I  have  not  about  me.  My  remarks  are  not  intended  to 
reflect  on  the  gentleman  who  has  drawn  up  the  paper;  for  it  appears  that  the 
convention  ordered  the  paper  on  the  18th  of  June,  and  on  July  5th  it  was  handed 
in.  There  was  then  no  time  to  collect  the  materials  for  comparisons  such  as  I 
have  alludeil  to.  What  is  now  most  important  to  know  is  the  sum  total  of  what 
sentences  for  what  crimes  were  chiefly  remitted  or  pardoned  ;  for  what  reasons, 
what  proportion  pardons,  &c.,bear  to  unremitted  sentences;  for  what  crimes  and 


442 


ON  CIVIL  LIBERTY 


Table  showing  the  pardons  in  the  follotving prisons  in  one  or  several 
years  from  1835  to  1846. 

Vermont,  one  convict  pardoned  of    5.87  convicts. 

Maine,  "  "  20.74  " 

New  Hampshire,  "  "  4-56  " 

Connecticut,  "  "  36-50  " 

Massachusetts,  "  "  18.04  " 

Virginia,  "  "  33-31  ** 

Maryland,  "  "  41.00  " 

Sing  Sing,  "  **  21.25 

Auburn,  "  "  17.83 

Eastern  Penitentiary,  "  **  20.37  ** 

Western  Penitentiary,  "  "  6.43  " 

Mississippi,  "  "  10.81  " 

Kentucky,  "  "  8.50 

District  of  Columbia,  "  "  87.00  " 

Ohio,  "  "  II. 31 

Rhode  Island,  ''  '«  18.00 

If  we  take  the  above  list  as  a  fair  representation  of  the  whole 
United  States,  we  shall  find  that  one  convict  of  26.33  is  pardoned. 
But  we  fear  that  this  would  not  be  very  correct ;  nor  must  it  be 
believed  that  any  average  niunber  fairly  represents  the  average  mis- 
chief oi  the  abuse  of  pardoning.  Although  there  be  but  very  few 
convicts  pardoned  in  a  given  community,  yet  incalculable  mischief 
may  be  done  by  arbitrarily  or  wickedly  pardoning  a  few  prominent 
and  deeply-stained  criminals,  as  the  average  temperature  of  a  place 
may  turn  out  very  fair  at  the  end  of  a  year,  while,  nevertheless,* 
a  few  blasting  night-frosts  may  have  ruined  the  whole  crop. 

It  ought  to  be  kept  in  mind  that,  in  all  calculations  of  prob- 
ability, averages  must  be  taken  with  peculiar  caution  in  all  cycles 
of  facts  in  which  an  exceptionally  high  or  low  state  of  things  pro- 
duces effects  of  its  own,  differing  not  only  in  degree  but  also  in 
kind  from  the  effects  which  result  from  the  more  ordinary  state  of 
things.     In  these  cases  averages  indicate  very  partial  truth  only,  or 


what  duration  these  sentences  were  inflicted ;  of  what  countries  the  pardoned, 
&c.,  convicts  were;  and  what  proportion  the  pardoned,  &c.,  short  sentences  bear 
to  pardoned,  &c.,  long  sentences  or  death. 


A  ND  SELF-  G  O  VERNMENT. 


443 


cannot  be  taken  as  an  index  of  the  desired  truth  at  all.  The  effects 
of  these  maxima  or  minima  are  not  distributive,  and  being  effects 
of  a  distinct  class  there  are  no  facts  in  the  opposite  direction  to 
counteract  them.  This  applies  to  moral  as  well  as  physical  aver- 
ages, and  before  we  apply  ourselves  to  averages  at  all  we  must  dis- 
tinctly know  whether  the  elements  we  are  going  to  use  stand  in  the 
proper  connection  with  the  nature  of  the  result  at  which  we  desire 
to  arrive.^ 

The  abuse  then  exists,  and  exists  in  an  alarming  degree.  How 
is  it  to  be  remedied  ? 

In  trying  to  answer  this  question,  we  would  preface  that  we  are 
well  aware  that,  unfortunately,  the  pardoning  power  is  in  almost 
all  states  of  our  confederacy  determined  by  their  constitutions, 
and  cannot  be  changed  without  a  change  of  these  fundamental 
instruments.  The  object  of  the  present  paper,  however,  is  not  to 
propose  any  political  measure.  We  shall  treat  the  subject  as  a 
scientific  one,  and  an  open  question,  irrespective  of  what  can  or 
may  be  done  in  the  different  states  in  conformity  with  existing 
fundamental  laws.  It  is  necessary,  before  all,  to  know  what  is  the 
most  desirable  object  to  be  obtained.  After  this  has  been  done,  it 
will  be  proper  for  every  one  concerned  to  adopt  that  practical 
course  which  best  meets  his  own  peculiar  circumstances,  and  to 
settle  how  near  his  own  means  allow  him  to  approach  the  desirable 
end. 

Many  vague  things  have  been  asserted  of  the  pardoning  power 
by  writers  otherwise  distinguished  for  soundness  of  thought,  because 


»  A  few  examples  may  illustrate  the  truth  too  often  forgotten :  No  farmer  can 
determine  the  fitness  of  a  given  climate  for  the  culture  of  a  certain  plant  from 
the  mean  heat  of  the  summer  or  the  mean  cold  of  the  winter;  for  the  mean  heat 
does  not  indicate  whether  the  weather  is  uniform  or  violently  changeable ;  the 
mean  interest  at  which  money  may  have  been  obtainable  in  the  course  of  the 
year  does  not  indicate  the  truth,  unless  we  know  that  it  has  not  been  peculiarly 
low  at  some  periods  and  extraordinarily  high  at  others  ;  the  general  criminality 
of  a  community  cannot  be  calculated  from  the  percentage  of  crime,  unless  we 
know  that  there  has  not  been  a  peculiarly  disturbing  cause :  for  instance,  one 
man  who  has  murdered  half  a  dozen  of  people  in  a  comparatively  small  com 
munity ;  and  the  mischief  produced  by  pardons  cannot  be  calculated  by  the 
average  percentage  alone,  if  we  do  not  know  that  -among  these  pardons  there 
were  not  some  peculiarly  arbitrary  or  peculiarly  hostile  to  the  ends  of  justice.  A 
wholesale  pardon  may  be  warranted  by  the  truest  principles,  and  a  single 
arbitrai-y  pardon  may  shock  the  whole  community. 


444  O^'  CIVIL  LIBERTY 

they  were  unable  to  rid  themselves  of  certain  undefined  views  and 
feelings  concerning  princes  and  crowns.  Some  have  maintained 
that  the  pardoning  privilege  can  be  justified  only  in  the  monarchy, 
because  the  monarch  combines  the  character  of  the  legislator  and 
executive,  while  Montesquieu  wishes  to  restrict  the  right  to  the 
constitutional  monarch  alone,  because  he  does  not  himself  perform 
the  jud'cial  functions.  All  these  opinions  appear  to  us  unsubstan- 
tial. There  is  nothing  mysterious,  nothing  transcendental  in  the 
pardoning  power.  The  simple  question  for  us  is,  Why  ought  it  to 
exist  ?  If  it  ought  to  exist,  who  ought  to  be  vested  with  it  ? 
What  are  its  abuses,  and  how  may  we  protect  ourselves  against 
them  ? 

AVe  have  already  seen  that  doubtless  the  pardoning  power  ought 
to  exist : 

That  there  is  no  inherent  necessity  that  it  ought  to  exist  in  the 
executive,  or  in  the  executive  alone  : 

That  a  wide-spread  abuse  of  the  pardoning  power  exists,  and 
has  existed  at  various  periods  : 

That  the  abuse  of  the  pardoning  power  produces  calamitous 
effects : 

That  the  executive  in  our  country  is  so  situated  that,  in  the 
ordinary  course  of  things,  it  cannot  be  expected  of  him  that  he  will 
resist  the  abuse : 

And  that  the  chief  abuse  of  the  pardoning  power  consists  in  the 
substitution  of  an  arbitrary  use  of  power  or  of  subjective  views 
and  individual  feelings,  for  high,  broad  justice,  and  the  unwaver- 
ing operation  of  the  law,  which  ought  to  be  freed  from  all  arbitra- 
riness. 

We  know,  moreover,  that  all  our  constitutions,  as  well  as  the 
laws  of  England,  actually  restrict  the  pardoning  power  in  some 
cases ;  for  instance,  regarding  impeachments,  or  fines  to  be  paid  to 
private  parties ;  and  in  most  of  our  states  tlie  executive  is  not  in- 
vested with  the  right  of  pardoning  treason,  which  can  only  be  done 
by  the  legislature.'    In  others,  again,  the  governor  has  no  authority 


'  Tlie  Constitution  of  the  late  French  Republic  of  1848  has  this  provision: 

"  Art.  55.     He  (the  president  of  the  republic)  shall  possess  the  right  of  pardon, 

but  he  shall  not  have  the  power  to  exercise  the  right  until  after  he  has  taken 

the  advice  of  the  council  of  state.      Amnesties  shall  only  be   granted  by  an 

express  law.     The  president  of  the  republic,  the  ministers,  as  well  as  all  othei 


AXD  SELF-GO]'ER\.\fEXT.  445 

to  pardon  capital  punishment  before  the  end  of  the  session  of  that 
legislature  which  first  meets  after  the  sentence  of  death  has  been 
pronounced  ;  and  in  other  states  he  has  only  the  power  of  respiting 
the  capitally  condemned  criminal  until  the  meeting  of  the  legisla- 
ture. It  is  obvious  that  no  specific  reason  has  induced  our  legisla- 
tors to  give  the  pardoning  power  to  the  executive.  It  was  rather 
left  where  they  happened  to  find  it,  or  they  placed  it  by  analogy, 
and  not  in  consideration  of  any  intrinsic  reasons.' 

If  it  be  true  that  pardon  ought  to  be  granted  only  in  cases  in 
which  essential  justice  demands  it  against  the  law,  or  for  very  spe- 
cific and  peculiar  reasons — for  instance,  if  a  convict,  sentenced  to 
a  short  imprisonment,  is  so  feeble  in  health,  that,  no  proper  hos- 
pital existing,  the  incidental  consequences  of  imprisonment  would 
be  infinitely  severer  than  the  law  intended  the  punishment  to  be,' 


peisons  condemned  by  the  high  court  of  justice,  can  only  be  pardoned  by  the 
national  assembly." 

I  do  not  consider  it  desirable  that  the  pardoning  power  be  given  or  imposed 
upon  a  political  body  already  existing  for  other  purposes,  as  in  this  case  to  the 
council  of  state;  but  I  have  cited  this  provision  to  show  that  the  French  at  that 
time  did  not  consider  the  limitation  of  the  pardoning  power  in  the  executive 
unfavorable  to  popular  liberty. 

'  A  remarkable  proof  of  this  fact  seems  to  have  been  afforded  by  the  late  con- 
stituent assembly  of  the  state  of  New  York ;  for,  so  far  as  we  are  aware,  there 
was  no  debate  on  the  question  whether  the  pardoning  power  ought  to  be  left 
uncontrolled  in  the  hands  of  the  executive.  We  can  very  well  imagine  that, 
after  a  discussion  of  this  subject,  a  majority  might  have  decided,  erroneously  in 
our  opinion,  that  the  pardoning  privilege  ought  to  remain  where  it  was ;  but  we 
cannot  imagine  that  a  large  number  of  men  could  have  possibly  been  from  the 
beginning  so  unanimous  upon  so  important  a  subject,  that  not  even  a  discussion 
was  elicited,  had  the  pardoning  been  made  a  subject  of  any  reflection  at  all. 
This  is  impossible  in  the  nature  of  things.  Men  will  differ  in  opinion  upon 
almost  any  point,  and  would  certainly  have  differed  upon  so  weighty  and  delicate 
a  subject,  had  their  minds  been  directed  to  it. 

^  We  certainly  think  that  ill  health,  threatening  disastrous  consequences,  should 
form  a  ground  of  release  in  cases  of  comparatively  short  sentences,  if  no  good 
prison  hospital  exists.  But,  even  where  no  hospital  exists  (which  is  undoubtedly 
a  great  deficiency),  much  caution  must  be  exercised.  An  experienced  and  highly 
respectable  prison  physician  in  Massachusetts  stated  in  his  report,  some  years 
ago,  that  pardons  on  account  of  deficient  health  had  a  tendency  to  increase  sick- 
ness in  the  prison,  because  many  prisoners  will  seriously  and  perseveringly  injure 
their  health  in  the  hope  of  obtaining  thereby  a  pardon.  A  prison  ought  to  have 
a  hospital,  and  if,  in  spite  of  a  good  hospital,  the  consciousness  of  being  impris- 


446  ON  CIVIL  LIBERTY 

(and  is  not  this  also  a  case  of  essential  justice  against  the  law  ?) — 
or  because  strong  suspicions  of  innocence  have  arisen  after  the 
trial,  it  is  equally  clear  that  pardon  ought  to  be  granted  after  due 
investigation  only,  and  that  this  investigation  ought  to  be  insured 
by  law. 

The  pardoning  power  might  be  transferred  from  the  executive  to 
the  legislature,  or  to  an  assembly  of  judges.  We  are  emphatically 
averse  to  either  measure.  The  legislature  is  composed  of  members 
elected  to  represent  a  variety  of  interests  and  views,  all  of  which 
ought  to  have  a  proportionate  weight  in  the  formation  of  laws ;  but 
neither  the  reasons  why  nor  the  objects  for  which  legislators  are 
elected  have  any  connection  with  deciding  upon  a  question  of  par- 
don. If  the  decision  were  left  at  once  to  the  whole  assembly,  it 
would  be  impossible  to  give  that  degree  of  attentive  examination 
to  the  details  of  each  case  which  its  nature  requires,  and  a  party 
feeling  would  frequently  warp  a  decision  which  could  be  justified 
only  on  the  ground  of  the  highest  and  of  essential  justice.  If  the 
case  were  first  given  to  a  committee  (as  we  may  imagine  a  standing 
committee  of  pardon),  and  the  legislature  were  regularly  to  follow 
the  decision  of  the  committee,  the  latter  step  is  useless ;  if  the 
legislature,  however,  were  not  to  follow  implicitly  this  decision,  we 
have  the  incongruities  just  indicated.  As  to  the  forming  a  board 
of  pardon  of  judges  alone,  we  think  the  case  would  be  equally 
incongruous.  The  business  of  the  judge,  his  duty,  and  his  habit 
of  thinking,  are  strictly  to  apply  the  law.  He  is  a  valuable  magis- 
trate only  so  long  as  he  is  a  faithful  organ  of  the  established  law ; 
but,  in  the  case  of  pardon,  the  object  is  neither  to  make  nor  to 
apply  a  law,  but  to  defeat  its  operation  in  a  given  and  peculiar 
case. 


oned  has  of  itself  any  bad  consequences  for  the  imprisoned  patient,  it  must  be 
taken  as  one  of  the  many  incidental  but  unavoidable  consequences  of  all  impris- 
onment. There  are  more  serious  consequences  than  this,  which  we  are,  never- 
theless, unable  to  separate  from  punishment.  Punishment  ought  always  to  be 
individual,  and  to  strike  no  one  but  the  evil-doer:  yet  there  is  hardly  ever  an 
individual  punished  whose  sentence  does  not  at  the  same  time  entail  moral  or 
physical  suffering  upon  others.  Men  are  decreed  to  constitute  societies,  with 
concatenated  weal  and  woe,  and  human  judges  cannot  punish  without  indirectly 
inflicting  suffering  upon  those  who  are  unconnected  with  the  crime,  but  con- 
nected with  the  criminal.  If  we  were  absolutely  to  follow  out  the  first  prin- 
ciple, that  the  offender  alone  should  suffer,  we  could  not  punish  a  single  convict 


AND  SELF-  G O  VERNMENT. 


447 


In  order  to  constitute  a  proper  authority,  to  which  the  pardon- 
ing privilege  can  be  safely  intrusted,  we  ought  to  organize  it  so  that 
the  following  points  are  well  secured  : 

That  a  careful  investigation  of  each  case  take  place  before  par- 
don be  granted  : 

That  the  authority  be  sufficiently  strong  to  resist  importunity : 

That  it  contain  a  sufficient  amount  of  knowledge  of  the  law,  its 
bearing,  and  object: 

That  it  enjoy  the  full  confidence  of  the  community. 

These  great  objects,  it  is  believed,  can  be  obtained  by  a  board 
of  pardon,  consisting  of  a  proper  number  of  members — say  nine 
(in  the  republic  of  Geneva  it  consists  of  this  number),  with  one  or 
two  judges  among  them,  to  be  appointed  by  the  legislature,  with  a 
periodical  partial  renovation  (one-third  leaving  every  three  years), 
and  with  these  farther  provisions : 

That  the  board  sit  at  certain  portions  of  the  year — say  twice : 

That  certain  and  distinct  grounds  must  be  stated  in  every  peti- 
tion for  pardon  ;  and  that,  without  them,  all  petitions,  ever  so  re- 
spectably and  numerously  signed,  be  not  received  : 

That  pardon  can  be  granted  by  the  governor  only  when  duly 
recommended  by  the  board  ;  and  must  be  granted  if  the  board 
recommend  it  a  second  time,  after  the  governor  has  returned  the 
recommendation  with  his  reasons  against  it : 

That  no  pardon  be  recommended  without  advertising  in  the 
county  where  the  convict  has  lived  previous  to  his  imprisonment, 
and  where  he  has  committed  his  crime,  that  the  board  have  in  view 
to  recommend  him  to  pardon,  and  without  giving  proper  time  to 
act  upon  the  advertisement  : 

That  no  pardon  be  granted  without  informing,  likewise,  the 
warden  of  the  prison,  or  prisons,  in  which  the  subject  of  the  in- 
tended pardon  is,  or  has  been,  incarcerated,  of  the  intention  of 
the  board  : 

That  no  pardon  be  granted  without  previous  inquiry  of  the  court 
which  has  sentenced  the  convict : 

And  that  the  reasons  of  the  pardon,  when  granted,  be  published. 

Without  some  such  guarantees,  the  pardoning  power  will  always 
be  abused.  The  advertising  of  the  intention  of  pardoning  will 
not  be  mistaken  for  an  extra-constitutional  and  illegal  call  upon 
the  county  to  exercise  functions  which  do  not  belong  to  it,  and 
ought  not  to  belong  to  it,  as,  in  reality,  the  governor  of  Ohio 


448  ON  CIVIL  LIBERTY 

(years  ago)  respited  the  execution  of  a  criminal  guilty  of  an  atro- 
cious murder,  informing,  at  the  same  time,  the  people  of  the 
county  whence  the  criminal  came,  that  he  was  desirous  of  knowing 
whether  they  wished  the  criminal  pardoned  or  not.' 

Nor  must  it  be  believed  that,  while  we  recommend  to  inform  the 
warden  of  a  prisoner  that  his  pardon  is  contemplated,  we  are  de- 
sirous of  countenancing  a  system  of  pardon  founded  upon  the  good 
conduct  of  the  convicts  in  the  prison.  We  consider  such  a  measure 
inadmissible,  for  many  reasons.  It  has  been  tried  in  France,  on  a 
large  scale ;  and  the  effect  was  so  bad  that  its  own  author  obtained 
its  abolition,  confessing  his  error,^  What  we  desire  is,  that  proper 
information  be  obtained  before  a  convict  be  pardoned,  and  that  no 
imposition  take  place.  It  frequently  happens  that  a  pardon  is 
obtained  by  persons  unacquainted  with  the  culprit,  and  a  dangerous 
and  infamous  man  is  returned  to  a  community  which  had  the 
deepest  interest  in  seeing  the  law  take  its  uninterrupted  course. 

We  think  it  proper  that  the  executive,  thus  controlled  on  the 
one  hand,  and  protected  against  importunities  on  the  other,  form 
a  party  to  the  pardon,  because  the  actual  release  must  go  through 
his  hands. 

We  doubt  not  that,  if  a  board  of  pardoning  were  established,  in 
a  short  time  a  series  of  fair  principles  and  rules,  somewhat  like  the 
rules  of  equity,  would  be  settled  by  practice,  and  the  pardoning 
would  be  far  less  exposed  to  arbitrary  action. 

Totally  distinct,  however,  from  the  pardoning  ought  to  be  kept 
the  restitution  of  a  convict,  when  innocence  has  been  proved  after 
conviction.  It  is  a  barbarous  error  to  confound  acknowledgment 
of  wrong  committed  by  society  against  an  individual  with  the  par- 
doning of  a  guilty  person.  Nothing  can  ^e  pardoned  where 
nothing  is  to  be  pardoned,  or  where  the  only  pardoner  is  the  con- 
vict. He  is  entitled  to  indemnity,  and  the  process  ought  even  to 
be  called  by  a  different  name  and  differently  to  be  provided  for. 
Not  long  ago  a  person  sentenced  for  forgery  in  England  to  trans- 
portation for  a  very  long  period  or  for  life,  we  forget  which,  was 
pardoned  after  several  years'  endurance  of  the  sentence,  because 
his  innocence  had  been  made  patent.     Some  English  papers  justly 


'  National  Gazette,  Philadelphia,  October  lo,  1833. 

^  De  la  Ville  de  Mirmont,  Observations  sur  les  Maisons  Centrales  de  Deten- 
tion de  Paris,  1833,  p.  55,  and  sequ. 


AND  SELF-GOVERNMENT.  449 

remarked  how  incongruous  a  pardon  is  in  such  ca^es,  where,  in 
fact,  the  question  is  how  a  great  and  ruinous  wrong  committed  by 
society  against  an  individual  may  be  repaired  in  some  degree  at 
least,  and  as  far  as  it  lies  in  human  power.  This  is  an  important 
subject  of  its  own,  deserving  the  most  serious  attention  of  all 
civilized  states,  but  does  not  fall  within  the  province  proper  of 
pardoning. 

FRANCIS  LIEBER. 

I  append  to  this  paper,  besides  the  additional  notes  which  the 
reader  has  seen,  the  following  three  items  : 

The  official  reports  of  the  attorney-general  of  Massachusetts 
show  that : 

In  1850,  prosecutions  of  crime  cost  in  that  state  866,589  36 

1851,  "  "  "  7i>o78  18 

1852,  "  "  "  63,900  68 

To  this  must  be  added  the  cost  of  the  courts,  detective  police, 
rewards,  penitentiaries,  prison  support. 

When  we  speak  of  the  cost  of  crime  in  general,  we  must  not 
only  take  into  account  the  above  items,  but  also  the  waste  of  prop- 
erty by  criminals,  and  the  loss  of  labor,  for  criminals  by  profession 
do  not  work,  therefore  do  not  produce. 

The  following  extract  of  a  speech  by  Lord  Palmerston,  secretary 
for  the  home  department,  June  i,  1853,  in  the  commons,  is  very 
remarkable.  C^  est  tout  comjne  chez  nous.  I  do  not  mean  our 
Quakers  act  thus,  but  women  inconsiderately  get  up  petitions,  and 
are  joined  by  busy  religionists.     Lord  Palmerston  said  : 

"  That  would  be  a  very  great  evil,  were  any  change  of  the  law  to 
bring  it  about.  But  let  us  see  how  the  thing  would  work.  Even 
now,  in  cases  of  disputed  rights  of  property,  although  it  is  gen- 
erally matter  of  great  scruple  of  conscience  to  depose  to  statements 
which  are  not  consistent  with  truth,  yet  we  frequently  see  evidence 
brought  before  courts  of  law  not  founded  in  fact.  But  in  matters 
regarding  life  and  liberty,  I  am  sorry  to  say  that  benevolent  indi- 
viduals have  very  little  conscience  at  all.  {^ Hear  f  and  laughter.') 
You  may  depend  upon  it  that  I  have  had  too  much  experience  of 
the  truth  of  what  I  have  stated.  I  get  applications  signed  by  great 
numbers  of  most  respectable  persons  in  favor  of  individuals  with 
regard  to  whose  guilt  there  can  be  no  possible  doubt,  or  any  doubt 

2Q 


450 


ON  CIVIL  LIBERTY  AND  SELF-GOVERNMENT. 


that  they  have  committed  the  most  atrocious  crimes.  That  is  a 
matter  of  every-day  occurrence.  Not  long  ago,  a  member  of  the 
Society  of  Friends  actually  tried  to  bribe  a  witness  to  absent  him- 
self from  the  trial  of  a  prisoner,  in  order  to  screen  the  man  from 
punishment,  of  whose  guilt  no  human  being  could  doubt.  If  you 
had  these  second  trials,  you  would  have  these  pious  frauds  as  fre- 
quently committed." 

Lastly,  I  would  put  here  a  short  newspaper  paragraph — very 
simple  yet  very  fearful. 

"In  the  course  of  an  editorial  article,  intended  to  show  that  it 
is  the  certainty,  and  not  the  severity,  of  punishment  which  is  needed 
for  the  suppression  of  crime,  the  Pittsburg  Commercial  makes  the 
following  statement : — ' 

"'In  fifteen  years,  during  which  the  annals  of  crime  in  this 
county  have  been  stained  by  more  thati  ffty  murders,  a  single  in- 
stance of  hanging  has  been  affirmed  by  the  executive  as  the  measure 
of  extreme  penalty  due;  and  there  justice  was  cheated  of  her 
victim  by  suicide !'" 


National  Intelligencer,  Washington,  July  12,  1853, 


APPENDIX  III. 


A   PAPER    ON    SUBJECTS    CONNECTED   WITH    THE   INQUISITORIAL 
TRIAL   AND    THE    LAWS    OF   EVIDENCE. 

Few  things,  in  my  opinion,  show  more  distinctly  the  early  Eng- 
lish character  than  the  fact  that,  without  vindictiveness  or  cruelty 
in  the  national  character,  the  penal  law  inflicted  death  with  a  fear- 
ful disregard  of  human  life,  while  at  the  same  time  the  penal  trial 
was  carried  on  with  great  regard  for  individual  rights  and  for  the 
mode  of  ascertaining  the  truth.  The  English  were  from  early  times 
a  peculiarly  jural  nation. 

Those  people  who  have  the  inquisitorial  trial,  on  the  other  hand, 
were  in  some  instances  far  less  sanguinary  in  their  punishments, 
but  perfectly  regardless  of  the  trial,  or,  rather,  the  trial  seemed  to 
have  been  established  chiefly  for  the  prosecuting  party.  It  aimed 
at  knowing  the  truth ;  the  means  to  arrive  at  it  were  little  cared 
about.  The  rights  of  the  prosecuted  person  appeared  in  a  shadowy, 
undefined  way.     And  all  this  continues  to  exist  in  many  countries. 

I  do  not  speak  here  of  the  worst  countries  only.  I  do  not  mean 
to  advert  to  the  Austrian  trial,  as  it  was  before  the  late  revolutions. 
I  refer,  for  instance,  to  the  German  penal  trial ;  and  mean  by  it 
the  penal  trial  of  the  countries  in  which  the  common  German  law 
prevails,  as  well  as  those  where,  as  in  Prussia,  a  trial  by  statute  law 
is  introduced.  The  late  revolutions  have  changed  some  items. 
The  main  ideas,  however,  remain,  in  many  cases,  the  same. 

Now,  when  a  person  accustomed  to  a  regular  and  well-guarded 
penal  trial  reads  such  works  as  Feuerbach's  Criminal  Cases,  or  any 
detailed  description  of  a  penal  trial,  the  laxity  and  incongruity  of 
the  procedure  strike  us  among  other  things  with  reference  to  the 
following  points : 

I.  The  inquiring  judge,  that  is,  the  judge  who  has  been  detailed, 
to  use  a  military  term,  to  lead  the  whole  inquiry,  and  who  has  been 
day  after  day  with  the  prisoner,  and  only  one  witness,  viz.  the 
secretary,  and  whose  whole  skill  has  been  exerted  to  bring  the  pris- 

451 


452  ON  CIVIL  LIBERTY 

oner  to  confession,  or  to  establish  the  crime,  is  also  frequently  the 
first  sentencing  judge,  and  always  very  powerfully  influences  the 
sentence.  If  there  is  a  separate  sentencing  judge,  all  the  "acts," 
that  is,  all  that  has  been  written  down,  is  handed  over  to  him,  and 
from  them  he  frames  his  sentence,  upon  which  the  other  judges,  if 
there  are  any,  vote  in  plenary  session.  As  a  matter  of  course,  they 
cannot  know  much  about  the  subject,  and  must  be  guided  by  the 
report  the  sentencing  judge  makes. 

2.  The  inquiring  judge  is,  in  many  cases,  what  we  would  con- 
sider wholly  unrestricted.  He  takes  hearsay  evidence,  and  all  sorts 
of  evidence,  if  he  thinks  proper.  He  is  unrestricted  as  to  time, 
and  an  accused  person  may  be  kept  for  years  under  trial.  He  is 
allowed  to  resort  to  all  kinds  of  tricks,  in  order  to  w^ork  upon  the 
imagination  of  the  prisoner ;  for  instance,  calling  him  up  at  mid- 
night, examining  him  and  suddenly  showing  a  skull  to  him.  Every 
worthy  and  puerile  motive  to  speak  the  truth  and  confess  the 
offence  is  resorted  to. 

3.  There  is  no  regular  indictment,  nor  does  the  accused  know  in 
his  examinations  what  is  charged  against  him ;  at  least  the  law  does 
not  demand  that  he  shall  know  it. 

4.  The  prisoner  is  constantly  urged  to  confess ;  the  whole  trial 
assumes  the  act  charged  against  the  prisoner,  and  treats  him  accord- 
ingly. Indeed  it  may  be  said  that,  although  not  avowedly,  yet 
virtually,  the  inquisitorial  trial  assumes  in  a  very  great  degree  the 
character  of  an  accusation  which  the  accused  has  to  disprove,  not 
one  which  the  accuser  is  bound  to  prove.  In  some  countries  and 
in  certain  cases  this  is  positively  the  case.  Even  the  French  penal 
trial  is  by  no  means  wholly  free  from  this  serious  fault. 

5.  There  is  no  physical  torture  resorted  to  in  order  "  to  bring 
out"  the  truth,  since  the  positive  abolition  of  the  torture,  but  the 
moral  torture  which  is  applied  is  immense,  and  the  judge  is  author- 
ized by  law  to  punish  with  lashes  or  other  physical  means  every 
contradiction  or  lie  proved  from  the  convict's  own  statements. 
That  this  can  easily  lead  to  all  sorts  of  abuses  is  obvious. 

6.  There  is  no  cross-examination  of  witnesses,  and  no  stringent 
law  to  compel  witnesses  in  favor  of  the  prisoner  to  appear  before 
the  court. 

7.  Court  and  police  frightfully  mingle  in  their  functions,  in  the 
first  stages  of  the  trial. 

8.  There  is  a  most  sorrowful  defence,  cautious,  fearful  of  offend- 


AND  SELF-GOVERNMENT.  453 

ing  the  judges  upon  whom  the  promotion  of  the  defensor  depends, 
and  empowered  to  procure  that  certain  points  be  further  cleared  up 
,  only  through  the  court,  which  is  the  prosecuting  party.  Besides, 
the  defence  only  begins  when  the  whole  investigation  by  the  court 
is  at  an  end,  that  is  to  say,  all  the  "acts"  are  handed  over  to  the 
defensor.  He  studies  them  and  writes  the  defence,  which  is  given 
along  with  the  ''acts"  to  the  sentencing  judge. 

No  wonder  that  the  Germans  universally  called  for  a  total  change 
of  such  a  trial,  and,  as  I  stated  before,  some  very  important  changes 
have  taken  place. 

The  chief  incongruity  in  this  inquisitorial  trial,  however,  is  that 
it  admits  of  half  proofs,  two  of  which  amount  to  a  whole  proof, 
with  other  logical  flagrancies,  as  well  as  the  legal  flagrancy  of  "  de- 
ficieni  proof,"  according  to  which  a  lighter  punishment,  but  still  a 
punisl.me.it,  is  inflicted. 

It  is  ha.dly  conceivable  how  an  intelligent  nation,  advanced  in 
the  scieiic\.s,  can  have  continued  a  logical  absurdity  of  such  crying 
character  until  the  most  recent  times,  and  can  continue  it,  in  some 
parts  of  the  country,  to  this  day.  It  is  reversing  the  order  of 
things,  a.id  substituting  evidence,  the  means  of  arriving  at  the  fact, 
which  is  :hc  thing  to  determine  the  punishment,  for  the  criminal 
fact. 

The  piinciple  from  which  we  start  in  penal  law  is,  that  crime 
ought  to  oe  followed  by  evil,  as  a  consequence  of  the  crime.  If 
crimes  punished  themselves,  we  should  not  want  judges ;  if  judges 
were  omniscient,  we  should  not  want  trials.  The  object  of  the 
trial  is  to  prove  that  a  crime  has  been  committed,  and  that  it  has 
been  committed  by  the  indicted  person.  This  is  called  establish- 
ing the  fact,  which  means  proving  it — reproducing  it,  as  it  were, 
before  the  eyes  of  the  judge ;  in  one  word,  convincing  him  of  the 
truth  of  the  charge,  or  fact ;  and  it  is  the  fact  alone  that  can  be 
punishable.  But  the  idea  of  a  fact  does  not  admit  of  degrees. 
There  may,  indeed,  be  every  possible  degree  of  belief  in  a  judge, 
from  the  first  suspicion,  from  surmise,  doubt,  and  belief,  to  the 
fullest  conviction  ;  but,  if  he  metes  out  his  punishments  accordingly, 
he  does  not  punish  for  facts  done  by  others,  but  according  to  the 
degree  of  belief  in  himself.  He  substitutes  his  own  subjective  be- 
lief for  the  objective  fact.  Now,  there  cannot  be  half  facts,  or 
three-fourths  of  facts.  A  man  may,  indeed,  buy  poison,  to  commit 
murder;  he  may  add  to  this,  the  mixing  of  the  poison  with  a  soup; 


454  ON  CIVIL  LIBERTY 

he  may  add  to  this,  the  carrying  of  the  soup  to  the  sick-room ;  and 
he  may  add  to  this  again,  the  presenting  of  the  soup  to  a  patient, 
who  finally  consumes  it ;  but  all  these  successive  acts  are  not  parts 
of  facts.  Wherever  the  evil-minded  man  stopped,  it  was  a  fact ; 
and,  if  it  is  punished,  it  is  not  punished  as  part  of  a  crime,  but 
the  inchoate  crime  is  a  whole  penal  fact,  and,  as  such,  punished. 
Again,  though  four  persons  may,  as  witnesses,  establish  a  fact,  a 
truth,  each  witness  does  not  prove,  on  that  account,  a  fourth  of  the 
truth,  which,  like  the  fact,  is  one  and  indivisible.  If  they  prove  a 
chain  which  ultimately  establishes  a  fact,  they  still  prove  but  one 
fact,  and  each  one  proves  for  himself  a  whole  truth,  which,  in  con- 
nection with  the  other  truths,  establishes  the  ultimate  truth. 

If  four  not  very  creditable  witnesses  establish  one  fact,  when 
I  would  not  have  believed  either  of  them  singly,  because,  in  the 
assumed  case,  they  corroborate  one  another,  when  no  connivance 
can  have  taken  place,  they  are  in  this  case  good  witnesses,  each 
one  for  himself,  and  not  four  witnesses,  each  one  worth  a  fourth  of 
a  good  witness.  A  thousand  liars  cannot,  as  liars,  establish  a  truth, 
but  they  may  testify  under  circumstances  which  deprive  them  of 
the  character  of  liars,  and  thus  be  in  the  case  good  witnesses. 

It  is  true,  indeed,  that  man,  conscious  of  his  fallibility,  and  re- 
solved severely  to  punish  certain  crimes,  has  laid  down  the  rule 
that,  to  prove  certain  crimes  in  such  a  manner  that  the  law  shall 
consider  them  as  proved,  an  amount  of  testimony  shall  be  neces- 
sary which  is  not  required  for  lighter  offences.  But  this  is  only  as 
a  safeguard,  so  as  to  prevent,  as  far  as  in  us  lies,  the  unjust  infliction 
of  severe  punishment.  It  has  nothing  to  do  with  parts  of  truths, 
or  parts  of  facts.  It  has  nothing  to  do  with  logic.  In  barbarous 
times,  however,  it  was  actually  conceived  that  logic  itself  is  of 
a  sliding  character,  as  it  were.  The  Ripuarian  laws  demanded 
seventy-two  compurgators  to  absolve  an  incendiary,  or  murderer 
{Leg.  Ripuiv.,  cap.  vi.,  vii.,  and  xi.).  Here,  the  first  error  was  to 
consider  the  accused  as  tainted,  who  must  clear  himself,  and  not 
as  an  accused  person,  upon  whom  the  deed  must  be  proved.  The 
second  error  was  that  the  number  of  compurgators  must  rise  to  clear 
the  tainted  person,  according  to  the  taint  (which,  as  yet,  is  nothing 
but  accusation).  The  Koran  prescribes,  in  certain  cases,  a  number 
of  oaths — as  though  each  oath,  even  of  a  person  unworthy  of  belief, 
contained  some  truth,  which,  by  repetition,  could  be  accumulated, 
and  ultimately  form  a  whole  truth.     Not  quite  dissimilar  is  what 


AND  SELF-GOVERNMENT.  455 

we  read  in  Gregory  of  Tours.  When  the  chastity  of  a  certain 
queen  of  France  was  suspected,  three  hundred  knights  swore,  with- 
out hesitation,  that  the  infant  prince  was  truly  begotten  by  her  de- 
ceased husband.  As  if  the  oath  of  three  hundred  knights  could 
have  any  weight,  when  none  of  them  could  know  the  fact.  But,  if 
people  once  fall  into  the  error  of  demanding  the  proof  of  the 
negative  to  establish  innocence,  instead  of  demanding  the  proof 
positive  of  the  charge,  they  must  necessarily  fall  into  all  sorts 
of  errors.  The  ecclesiastical  law  required,  in  a  similar  manner,  or 
still  requires,  seventy  witnesses  to  prove  incontinency  on  a  car- 
dinal; and  in  Spain,  as  Chancellor  Livingston  tells  us,  it  required 
more  witnesses  to  convict  a  nobleman  than  a  commoner.  This 
is  pretty  much  the  same  logic  which,  as  Captain  Wilkes  tells  us, 
induces  the  Fijians  to  put  more  powder  into  the  gun  if  they  fire  at 
a  large  man. 

On  the  other  hand,  the  idea  of  punishing  according  to  the  de- 
gree of  conviction  in  the  judge,  namely,  lightly  if  light  suspicion 
only  has  been  existing,  more  severely  if  belief  has  been  created, 
and  so  on,  would  not  have  been  wholly  inconsistent  in  ancient 
times,  when  men  had  not  yet  succeeded  in  strictly  separating  the 
moral  law  from  the  law  of  nature,  and  when  the  punishment  was 
considered  as  a  sort  of  extinction  of  guilt — a  neutralizing  agent. 
This  is  a  theory  which  actually  some  modern  criminalists  of  promi- 
nence have  endeavored  to  revive.  According  to  them,  the  fact,  not 
the  deed,  is  punished — society  has  to  wipe  off  the  criminal  fact 
which  has  occurred,  and  the  punishment  is  like  the  minus  put 
against  the  plus.  But  Aristotle  already  said,  even  the  gods  cannot 
make  undone  what  has  been  done.  The  punishment  would  resem- 
ble the  penitence  which  in  early  times  kings  had  to  undergo  for 
great  national  calamities.  If  this  unphilosophical  view  were  true, 
it  would  be  difficult  to  show  why  the  criminal,  who  has  committed 
the  deed,  is  the  one  selected  to  re-establish  the  equilibrium  or  for 
the  atonement.  But  the  common  sense  of  mankind  has  been  in 
this  case,  as  in  a  thousand  others,  sounder  than  theories  of  unprac- 
tical thinkers. 

The  judge  who  punishes  half,  because  the  evidence  has  sufficed  to 
create  half  a  conviction  only,  commits  the  same  logical  fault  which 
a  navigator  Avould  commit  who  has  seen  but  dimly  something  that 
may  be  a  rock,  and  would  go  but  half  out  of  the  way  of  the  danger. 


456 


ON  CIVIL  LIBERTY 


I  say  he  commits  the  same  logical  fault,  although  the  effects  would 
be  the  reverse. 

Punishment,  which  is  the  intentional  infliction  of  some  suffer- 
ance as  deserved  sufferance  (in  which  it  differs  from  the  infliction 
of  pain  by  the  surgeon),  requires  the  establishment  of  the  deed, 
and  this  is  absolute.  The  various  degrees  of  belief  in  the  deed  are 
only  in  the  judge,  not  in  the  deed.  The  deed  must  determine 
the  different  degrees  of  infliction  of  pain  or  privation  ;  all  else  is 
illogical. 

If  the  reader  has  thought  that  I  have  dwelt  too  long  on  this 
topic,  he  must  remember  that  millions  are  to  this  day  subject  to 
such  legal  logic  as  has  been  described. 

It  will  be  hardly  necessary  to  refer  in  this  place  to  the  fact,  that 
although  the  ascertainment  of  truth  is  the  main  object  of  the  trial, 
it  is  not  on  that  account  allowed  to  resort  to  all  and  every  means 
which  may  bring  about  this  end.  Sound  sense  and  a  due  regard 
to  the  rights  of  individuals  lead  men  to  the  conviction  that  a  fixed 
law  of  evidence  is  necessary,  and  to  prescribe  rules  according  to 
which  courts  shall  believe  facts  to  be  established,  discarding  all 
those  means  which  may  expose  the  accused  to  cruelty,  which  may 
be  easily  abused,  which  in  turn  may  deceive,  and  whose  effects  in 
general  would  be  worse  than  the  good  obtained.  Truth,  estab- 
lished according  to  those  rules,  is  called  legal  truth.  There  can  be 
but  one  truth,  that  is  the  conviction  agreeing  with  fact,  but  truth 
may  be  established  by  various  means,  or  by  means  agreeing  with 
prescribed  rules.  There  may  be  one  witness  who  testifies  that  he 
has  seen  a  man  doing  that,  which,  before  the  court  can  punish  it, 
requires  two  witnesses.  The  judge  may  be  thoroughly  convinced 
that  the  witness  speaks  the  truth  ;  yet  the  truth  would  not  be  legally 
established — it  would  not  be  a  legal  truth.  This,  too,  may  appear 
unworthy  of  mention  ;  but  only  to  those  who  do  not  know  how 
vehemently  all  persons  hostile  to  liberty  declaim  against  the  dead 
letter  of  the  law,  the  hollow  formalism  of  the  Anglican  trial,  and 
how  anxious  they  are  to  substitute  the  subjective  opinion  of  the 
judge  for  the  positive  and  well-defined  law.  I  may  put  it  down 
here  as  a  fact  of  historical  interest  that  even  so  late  as  my  early 
days  I  heard  a  criminalist  of  some  distinction  regret  the  abolition 
of  "  the  question,"  i.e.  the  torture,  and  I  speak  gravely  when  I  say 
that,  as  times  go,  I  should  not  be  surprised  if  the  re-establishment 


ajvi)  self-  g  o  vernment. 


457 


of  the  torture  should  once  more  be  called  for  in  some  countries. 
Indeed,  has  the  torture  not  been  used?  Mr.  Gladstone's  pamphlet 
on  Neapolitan  affairs  tells  us  strange  things.' 


'  It  would  seem  that  the  torture  actually  continues  to  exist  in  some  parts  of 
Europe.  The  following  is  taken  from  the  London  Spectator,  of  December  22d, 
1S49,  which  gives  as  its  authority  the  well-known  Allgemeine  Zeitung,  published 
at  Augsburg,  and,  consequently,  not  far  from  Switzerland. 

"A  strange  circumstance,  says  the  Allgemeine  Zeitung,  has  just  taken  place 
at  Herisau,  the  capital  of  Inner  Appenzell,  in  Switzerland,  showing  how  much, 
in  these  countries  of  old  liberties,  civilization  is  behindhand  in  some  matters.  A 
young  girl  of  nineteen,  some  months  back,  assassinated  her  rival.  Her  lover 
was  arrested  with  her,  and,  as  she  accused  him  of  the  crime,  both  were  put  to 
the  torture.  The  girl  yielded  to  the  pain,  and  confessed  her  crime ;  the  young 
man  held  firm  in  his  denial :  the  former  was  condemned  to  death,  and  on  the 
7th  of  this  month  was  decapitated  with  the  sword,  in  the  market-place  of 
Herisau.  This  fact  is  itself  a  startling  one,  but  the  details  are  just  as  strange. 
For  two  hours  the  woman  was  able  to  struggle  against  four  individuals  charged 
with  the  execution.  After  the  first  hour  the  strength  of  the  woman  was  still  so 
great  that  the  men  were  obliged  to  desist ;  the  authorities  were  then  consulted, 
but  they  declared  that  justice  ought  to  follow  its  course.  The  struggle  then  re- 
commenced, with  greater  intensity,  and  despair  seemed  to  have  redoubled  the 
woman's  force.  At  the  end  of  another  hour  she  was  at  last  bound  by  the  hair  to 
a  stake,  and  the  sword  of  the  executioner  then  carried  the  sentence  into  effect." 

The  author  has  touched  upon  the  fact  that,  in  our  country,  the  abolition  of 
trial  by  jury  has  been  proposed,  in  the  note  appended  to  page  233.  The  topic 
is  one  of  vital  importance  to  our  entire  system  of  government  and  political 
existence.  It  is  for  this  reason  that  he  does  not  hesitate  to  direct  the  earnest 
student  of  law,  and  of  government,  to  a  German  work  of  high  merit — Mr.  Mit- 
termaier's  Legislation  and  Practice,  with  Reference  to  the  Penal  Trial,  accord- 
ing to  their  Recent  Development;  Erlangen,  1856.  The  author  had  not  become 
acquainted  with  this  important  work  when  the  page  referred  to  was  printing ; 
but  the  testimony  given  by  the  great  criminalist,  of  the  satisfactory  results  de- 
rived from  trial  by  jury,  even  in  countries  where  it  has  been  recently  established, 
has  induced  the  author  to  append  this  note  here,  rather  than  leave  his  readers 
unacquainted  with  evidence  of  such  weight  in  favor  of  so  great  an  institution, 
considered  by  almost  all  friends  of  liberty  as  one  of  the  substantial  acquisitions 
obtained  by  our  progressive  race. 


APPENDIX  IV. 

MAGNA   CHARTA   OF   KING   J(  »HN, 

fifteenth  day  of  june,  in  the  seventeenth  year  of  the 
king's  reign,  a,d.  1 215. 

John,  by  the  grace  of  God  king  of  England,  lord  of  Ireland 
duke  of  Normandy  and  Aquitain,  and  earl  of  Anjou :  to  the  arch- 
bishops, bishops,  abbots,  earls,  barons,  justiciaries  of  the  forests, 
sheriffs,  governors,  officers,  and  to  all  bailiffs  and  other  of  his  faith- 
ful subjects,  greeting.  Know  ye,  that  we,  in  the  presence  of  God, 
and  for  the  health  of  our  soul,  and  of  the  souls  of  our  ancestors 
and  heirs,  and  to  the  honor  of  God  and  the  exaltation  of  holy 
church,  and  amendment  of  our  kingdom,  by  advice  of  our  venera- 
ble fathers,  Stephen,  archbishop  of  Canterbury,  primate  of  all 
England  and  cardinal  of  the  holy  Roman  church;  Henry,  arch- 
bishop of  Dublin,  William,  bishop  of  London,  Peter,  of  Winchester, 
Jocelin,  of  Bath  and  Glastonbury,  Hugh,  of  Lincoln,  Walter,  of 
Worcester,  William,  of  Coventry,  Benedict,  of  Rochester,  bishops  ; 
and  master  Pandulph,  the  pope's  subdeacon  and  ancient  servant, 
brother  Aymerick,  master  of  the  temple  in  England,  and  the  noble 
persons,  William  Marescall,  earl  of  Pembroke,  William,  earl  of 
Salisbury,  William,  earl  of  Warren,  William,  earl  of  Arundel,  Alan 
de  Galoway,  constable  of  Scotland,  Warin  Fitz  Gerald,  Peter  Fitz 
Herbert,  and  Hubert  de  Burghe,  senechal  of  Poictou,  Hugo  de 
Nevill,  Matthew  Fitz  Herbert,  Thomas  Basset,  Alan  Basset,  Philip 
de  Albine,  Robert  de  Roppele,  John  Marescall,  John  Fitz  Hugh, 
and  others  our  liegemen  ;  have,  in  the  first  place,  granted  to  God, 
and  by  this  our  present  charter  confirmed  for  us  and  our  heirs 
forever : 

I.  That  the  church  of  England  shall  be  free,  and  enjoy  her  whole 
rights  and  liberties  inviolable.     And  we  will  have  them  so  to  be 
observed  ;  which  appears  from  hence  that  the  freedom  of  elections, 
458 


ON  CIVIL  LIBERTY  AND  SELF-GOVERNMENT.     459 

which  was  reckoned  most  necessary  for  the  church  of  England,  of 
our  own  free  will  and  pleasure  we  have  granted  and  confirmed  by 
our  charter,  and  obtained  the  confirmation  of  from  Pope  Innocent 
the  Third,  before  the  discord  between  us  and  our  barons:  which 
charter  we  shall  observe,  and  do  will  it  to  be  faithfully  observed  by 
our  heirs  forever. 

II.  We  have  also  granted  to  all  the  freemen  of  our  kingdom,  for 
us  and  our  heirs  forever,  all  the  underwritten  liberties,  to  have  and 
to  hold  to  them  and  their  heirs,  of  us  and  our  heirs. 

III.  If  any  of  our  earls,  or  barons,  or  others  who  hold  of  us  in 
chief,  by  military  service,  shall  die,  and  at  the  time  of  his  death  his 
heir  shall  be  of  full  age,  and  owe  a  relief,  he  shall  have  his  inherit- 
ance by  the  ancient  relief;  that  is  to  say,  the  heir  or  heirs  of  an 
earl,  for  a  whole  earl's  barony,  by  a  hundred  pounds ;  the  heir  or 
heirs  of  a  baron,  for  a  whole  barony,  by  a  hundred  pounds;  the 
heir  or  heirs  of  a  knight,  for  a  whole  knight's  fee,  by  a  hundred 
shillings  at  most;  and  he  that  oweth  less  shall  give  less,  according 
to  the  ancient  custom  of  fees. 

IV.  But  if  the  heir  of  any  such  shall  be  under  age,  and  shall  be 
in  ward,  when  he  comes  of  age  he  shall  have  his  inheritance  with- 
out relief  or  without  fine. 

V.  The  warden  of  the  land  of  such  heir,  who  shall  be  under  age, 
shall  take  of  the  land  of  such  heir  only  reasonable  issues,  reason- 
able customs,  and  reasonable  services;  and  that  without  destruction 
or  waste  of  the  men  or  things;  and  if  we  shall  commit  the  guardian- 
ship of  those  lands  to  the  sheriff,  or  any  other  who  is  answerable  to 
us  for  the  issues  of  the  land,  and  if  he  shall  make  destruction  and 
waste  upon  the  ward  lands,  we  will  compel  him  to  give  satisfaction, 
and  the  land  shall  be  committed  to  two  lawful  and  discreet  tenants 
of  that  fee,  who  shall  be  answerable  for  the  issues  to  us,  or  to  him 
whom  we  shall  assign.  And  if  Ave  shall  give  or  sell  the  wardship 
of  any  such  lands  to  any  one,  and  he  makes  destruction  or  waste 
upon  them,  he  shall  lose  the  wardship,  which  shall  be  committed 
to  two  lawful  and  discreet  tenants  of  that  fee,  who  shall  in  like 
manner  be  answerable  to  us,  as  hath  been  said. 

VI.  But  the  warden,  so  long  as  he  shall  have  the  wardship  of 
the  land,  shall  keep  up  and  maintain  the  houses,  parks,  warrens, 
ponds,  mills  and  other  things  pertaining  to  the  land,  out  of  the 
issues  of  the  same  land  ;  and  shall  restore  to  the  heir,  when  he 
comes  of  full  age,  his  whole  land  stocked  with  ploughs  and  car- 


460 


ON  CIVIL  LIBERTY 


riages,  according  as  the  time  of  wainage  shall  require,  and  the 
issues  of  the  land  can  reasonably  bear. 

VII.  Heirs  shall  be  married  without  disparagement,  so  as  that 
before  matrimony  shall  be  contracted  those  who  are  nearest  to  the 
heir  in  blood  shall  be  made  acquainted  with  it. 

VIII.  A  widow,  after  the  death  of  her  husband,  shall  forthwith, 
and  without  any  difficulty,  have  her  marriage  and  her  inheritance  ; 
nor  shall  she  give  anything  for  her  dower  or  her  marriage,  or  her 
inheritance,  which  her  husband  and  she  held  at  the  day  of  his  death ; 
and  she  may  remain  in  the  capital  messuage  or  mansion  house  of 
her  husband,  forty  days  after  his  death,  within  which  term  her  dower 
shall  be  assigned. 

IX.  No  widow  shall  be  distrained  to  marry  herself,  so  long  as  she 
has  a  mind  to  live  without  a  husband.  But  yet  she  shall  give 
security  that  she  will  not  marry  without  our  assent,  if  she  holds  of 
us,  or  without  the  consent  of  the  lord  of  whom  she  holds,  if  she 
holds  of  another. 

X.  Neither  we  nor  our  bailiffs  shall  seize  any  land  or  rent  for 
any  debt,  so  long  as  there  shall  be  chattels  of  the  debtor's  upon 
the  premises,  sufficient  to  pay  the  debt.  Nor  shall  the  sureties  of 
the  debtor  be  distrained,  so  long  as  the  principal  debtor  is  sufficient 
for  the  payment  of  the  debt. 

XL  And  if  the  principal  debtor  fail  in  the  payment  of  the  debt, 
not  having  wherewithal  to  discharge  it,  then  the  sureties  shall 
answer  the  debt ;  and  if  they  will,  they  shall  have  the  lands  and 
rents  of  the  debtor,  until  they  shall  be  satisfied  for  the  debt  which 
they  paid  him ;  unless  the  principal  debtor  can  show  himself  ac- 
quitted thereof,  against  the  said  sureties. 

XII.  If  any  one  have  borrowed  anything  of  the  Jews,  more  or 
less,  and  dies  before  the  debt  be  satisfied,  there  shall  be  no  interest 
paid  for  that  debt,  so  long  as  the  heir  is  under  age,  of  whomsoever 
he  may  hold.  And  if  the  debt  falls  into  our  hands,  we  will  take 
only  the  chattel  mentioned  in  the  charter  or  instrument. 

XIII.  And  if  any  one  shall  die  indebted  to  the  Jews,  his  wife 
shall  have  her  dower,  and  pay  nothing  of  that  debt ;  and  if  the 
deceased  left  children  under  age,  they  shall  have  necessaries  pro- 
vided for  them  according  to  the  tenement  (or  real  estate)  of  the 
deceased ;  and  out  of  the  residue  the  debt  shall  be  paid  ;  saving, 
however,  the  service  of  the  lords.  In  like  manner  let  it  be  with 
debts  due  to  other  persons  than  the  Jews. 


AXD  SELF-GOVERNMENT.  461 

XIV.  No  sciitage  or  aid  shall  be  imposed  in  our  kingdom,  unless 
by  the  common  council  of  our  kingdom,  except  to  redeem  our  per- 
son, and  make  our  eldest  son  a  knight,  and  once  to  marry  our 
eldest  daughter ;  and  for  this  there  shall  only  be  paid  a  reasonable 
aid. 

XV.  In  like  manner  it  shall  be  concerning  the  aids  of  the  city 
of  London  ;  and  the  city  of  London  shall  have  all  its  ancient 
liberties  and  free  customs,  as  well  by  land  as  by  water. 

XVI.  Furthermore,  we  will  and  grant  that  all  other  cities,  and 
boroughs,  and  towns,  and  ports,  shall  have  all  their  liberties  and 
free  customs ;  and  shall  have  the  common  council  of  the  kingdom, 
concerning  the  assessment  of  their  aids,  except  in  the  three  cases 
aforesaid. 

XVII.  And  for  the  assessing  of  scutages  we  shall  cause  to  be 
summoned  the  archbishops,  bishops,  abbots,  earls,  and  great  barons 
of  the  realm,  singly  by  our  letters. 

XVIII.  And  furthermore  we  shall  cause  to  be  summoned  in 
general  by  our  sheriffs  and  bailiffs,  all  others  who  hold  of  us  in 
chief,  at  a  certain  day,  that  is  to  say,  forty  days  before  the  meeting, 
at  least,  to  a  certain  place ;  and  in  all  letters  of  such  summons  we 
will  declare  the  cause  of  the  summons. 

XIX.  And  summons  being  thus  made,  the  business  shall  proceed 
on  the  day  appointed,  according  to  the  advice  of  such  as  shall  be 
present,  although  all  that  were  summoned  come  not. 

XX.  We  will  not  for  the  future  grant  to  any  one,  that  he  may 
take  aid  from  his  own  free  tenants,  unless  to  redeem  his  body,  and 
to  make  his  eldest  son  a  knight  and  once  to  marry  his  eldest 
daughter;  and  for  this  there  shall  only  be  paid  a  reasonable  aid. 

XXI.  No  man  shall  be  distrained  to  perform  more  service  for  a 
knight's  fee,  or  other  free  tenement,  than  is  due  from  thence. 

XXII.  Common  pleas  shall  not  follow  our  court,  but  shall  be 
holden  in  some  certain  place.  Tryals  upon  the  writs  of  novel  dis- 
seisin, and  of  mort  d'ancestor,  and  of  darreine  presentment,  shall 
be  taken  but  in  their  proper  counties,  and  after  this  manner:  We, 
or  if  we  should  be  out  of  the  realm,  our  chief  justiciary,  shall  send 
two  justiciaries  through  every  county  four  times  a  year;  who  with 
the  four  knights  chosen  out  of  every  shire  by  the  people,  shall  hold 
the  said  assizes  in  the  county,  on  the  day  and  at  the  place  appointed. 

XXIII.  And  if  any  matters  cannot  be  determined  on  the  day 
appointed  to  hold  the   assizes   in   each    county,  so  many  of  the 


462 


ON  CIVIL  LIBERTY 


knights  and  freeholders  as  have  been  at  the  assizes  aforesaid  shall 
be  appointed  to  decide  them,  as  is  necessary,  according  as  there  is 
more  or  less  business. 

XXIV.  A  freeman  shall  not  be  amerced  for  a  small  fault,  but 
according  to  the  degree  of  the  fault ;  and  for  a  great  crime  in  pro- 
portion to  the  heinousness  of  it ;  saving  to  him  his  contenement, 
and  after  the  same  manner  a  merchant,  saving  to  him  his  mer- 
chandise. 

XXV.  And  a  villain  shall  be  amerced  after  the  same  manner, 
saving  to  him  his  wainage,  if  he  falls  under  our  mercy  ;  and  none 
of  the  aforesaid  amerciaments  shall  be  assessed  but  by  the  oath  of 
honest  men  of  the  neighborhood. 

XXVI.  Earls  and  barons  shall  not  be  amerced  but  by  their  peers, 
and  according  to  the  quality  of  the  offence. 

XXVII.  No  ecclesiastical  person  shall  be  amerced,  but  accord- 
ing to  the  proportion  aforesaid,  and  not  according  to  the  value  of 
his  ecclesiastical  benefice. 

XXVIII.  Neither  a  town  or  any  person,  shall  be  distrained  to 
make  bridges  over  rivers,  unless  that  anciently  and  of  right  they 
are  bound  to  do  it. 

XXIX.  No  sheriff,  constable,  coroners,  or  other  our  bailiffs, 
shall  hold  pleas  of  the  crown. 

XXX.  All  counties,  hundreds,  wapentakes  and  trethings  shall 
stand  at  the  old  ferm,  without  any  increase,  except  in  our  demesne 
lands. 

XXXI.  If  any  one  that  holds  of  us  a  lay  fee  dies,  and  the  sheriff 
or  our  bailiff  show  our  letters  patents  of  summons  concerning  the 
debt  due  to  us  from  the  deceased,  it  shall  be  lawful  for  the  sheriff 
or  our  bailiff  to  attach  and  register  the  chattels  of  the  deceased 
found  upon  his  lay  fee,  to  the  value  of  the  debt,  by  the  view  of 
lawful  men,  so  as  nothing  be  removed  until  our  whole  debt  be 
paid  ;  and  the  rest  shall  be  left  to  the  executors  to  fulfil  the  will  of 
the  deceased  ;  and  if  there  be  nothing  due  from  him  to  us,  all  the 
chattels  shall  remain  to  the  deceased,  saving  to  his  wife  and  chil- 
dren their  reasonable  shares. 

XXXII.  If  any  freeman  dies  intestate,  his  chattels  shall  be  dis- 
tributed by  the  hands  of  his  nearest  relations  and  friends,  by  the 
view  of  the  church,  saving  to  every  one  his  debts  which  the  de- 
ceased owed. 

XXXIII.  No  constable  or  bailiff  of  ours  shall  take  corn  or  other 


A  ND  SELF-  G  O  VERNMENT. 


463 


chattels  of  any  man,  unless  he  presently  gives  him  money  for  it, 
or  hath  respite  of  payment  from  the  seller. 

XXXIV.  No  constable  shall  distrain  any  knight  to  give  money 
for  castle  guard,  if  he  himself  shall  do  it  in  his  own  person,  or  by 
another  able  man,  in  case  he  shall  be  hindered  by  any  reasonable 
cause. 

XXXV.  And  if  we  shall  lead  him,  or  if  we  shall  send  him  into 
the  army,  he  shall  be  free  from  castle  guard  for  the  time  he  shall 
be  in  the  army  by  our  command. 

XXXVI.  No  sheriff  or  bailiff  of  ours,  or  any  other,  shall  take 
horses  or  carts  of  any  for  carriage. 

XXXVII.  Neither  shall  we,  or  our  officers,  or  others,  take  any 
man's  timber  for  our  castles,  or  other  uses,  unless  by  the  consent 
of  the  owner  of  the  timber. 

XXXVIII.  We  will  retain  the  lands  of  those  that  are  convicted 
of  felony  but  one  year  and  a  day,  and  then  they  shall  be  delivered 
to  the  lord  of  the  fee. 

XXXIX.  All  wears  for  the  time  to  come  shall  be  demolished  in 
the  rivers  of  Thames  and  Medway,  and  throughout  all  England, 
except  upon  the  sea-coast. 

XL.  The  writ  which  is  called  praecipe  shall  not  foi  the  future  be 
granted  to  any  one  of  any  tenement  whereby  a  free  man  may  lose 
his  cause. 

XLI.  There  shall  be  one  measure  of  wine  and  one  of  ale  through 
our  whole  realm,  and  one  measure  of  corn,  that  is  to  say,  the 
London  quarter ;  and  one  breadth  of  dyed  cloth  and  russets  and 
haberjects,  that  is  to  say,  two  ells  within  the  list ;  and  the  weights 
shall  be  as  the  measures. 

XLII.  From  henceforward  nothing  shall  be  given  or  taken  for 
a  writ  of  inquisition,  from  him  that  desires  an  inquisition  of  life  or 
limb,  but  shall  be  granted  gratis,  and  not  denied. 

XLIII.  If  any  one  holds  of  us  by  fee  farm,  or  socage,  or  bur- 
gage, and  holds  lands  of  another  by  military  service,  we  will  not 
have  the  wardship  of  the  heir  or  land,  which  belongs  to  another 
man's  fee,  by  reason  of  what  he  holds  of  us  by  fee  farm,  socage, 
or  burgage ;  nor  will  we  have  the  wardship  of  the  fee  farm,  soc- 
age, or  burgage,  unless  the  fee  farm  is  bound  to  perform  military 
service. 

XLIV.  We  will  not  have  the  wardship  of  an  heir,  nor  of  any 
and  -sv'hich  he  holds  of  another  by  military  service,  by  reason  of 


464 


ON  CIVIL   LIBERTY 


any  petit-serjeanty  he  holds  of  us,  as  by  the  service  of  giving  us 
arrows,  daggers,  or  the  like. 

XLV.  No  bailiff  for  the  future  shall  put  any  man  to  his  law, 
upon  his  single  accusation,  without  credible  witnesses  produced  to 
prove  it. 

XLVI.  No  freeman  shall  be  taken,  or  imprisoned,  or  disseised, 
or  outlawed,  or  banished,  or  any  ways  destroyed ;  nor  will  we  pass 
upon  him,  or  commit  him  to  prison,  unless  by  the  legal  judgment 
of  his  peers,  or  unless  by  the  law  of  the  land. 

XLVII.  We  will  sell  to  no  man,  Ave  will  deny  no  man,  or  defer, 
right  or  justice. 

XLA^III.  All  merchants  shall  have  safe  and  secure  conduct  to  go 
out  of  and  to  come  into  England,  and  to  stay  there,  and  to  pass, 
as  well  by  land  as  by  water,  to  buy  and  sell  by  the  ancient  and 
allowed  customs,  without  any  evil  toll,  except  in  time  of  war,  or 
when  they  shall  be  of  any  nation  in  war  with  us. 

XLIX.  And  if  there  shall  be  found  any  such  in  our  land  in  the 
beginning  of  a  war,  they  shall  be  attached,  without  damage  to 
their  bodies  or  goods,  until  it  may  be  known  unto  us,  or  our  chief 
justiciary,  how  our  merchants  be  treated  in  the  nation  at  war  with 
us;  and  if  ours  be  safe  there,  theirs  shall  be  safe  in  our  lands. 

L.  It  shall  be  lawful  for  the  time  to  come,  for  any  one  to  go  out 
of  our  kingdom,  and  return  safely  and  securely  by  land  or  by  water, 
saving  his  allegiance  to  us;  unless  in  time  of  war,  by  short  space, 
for  the  benefit  of  the  kingdom,  except  prisoners  and  outlaws, 
according  to  the  law  of  the  land,  and  people  in  war  with  us,  and 
merchants  who  shall  be  in  such  condition  as  is  above  mentioned. 

LI.  If  any  man  holds  of  any  escheat,  as  of  the  honor  of  Wal- 
lingford,  Nottingham,  Bologne,  Lancaster,  or  of  other  escheats 
which  are  in  our  hands,  and  are  baronies,  and  dies,  his  heir  shall 
not  give  any  other  relief,  or  perform  any  other  service  to  us  than 
he  would  to  the  baron,  if  the  barony  were  in  possession  of  the 
baron  ;  we  will  hold  it  after  the  same  manner  the  baron  held  it. 

LIT.  Those  men  who  dwell  without  the  forest,  from  henceforth 
shall  not  come  before  our  justiciaries  of  the  forest  upon  summons, 
but  such  as  are  impleaded  or  are  pledges  for  any  that  were  attached 
for  something  concerning  the  forest. 

LIII.  We  will  not  make  any  justiciaries,  constables,  bailiffs  or 
sheriffs,  but  what  are  knowing  in  the  laws  of  the  realm,  and  are 
disposed  duly  to  observe  it. 


AND  SELF-GOVERNMENT.  465 

LIV.  All  barons  who  are  founders  of  abbies,  and  have  charters 
of  the  kings  of  England  for  the  advowson,  or  are  entitled  to  it  by 
ancient  tenure,  may  have  the  custody  of  them,  when  void,  as  they 
ought  to  have. 

LV.  All  woods  that  have  been  taken  into  the  forests,  in  our  own 
time,  shall  forthwith  be  laid  out  again,  and  the  like  shall  be  done 
with  the  rivers  that  have  been  taken  or  fenced  in  by  us,  during  our 
reign. 

LVI.  All  evil  customs  concerning  forests,  warrens,  and  foresters, 
warreners,  sheriffs  and  their  officers,  rivers  and  their  keepers,  shall 
forthwith  be  inquired  into  in  each  county,  by  twelve  knights  of  the 
same  shire,  chosen  by  the  most  creditable  persons  in  the  same 
county,  and  upon  oath  ;  and  within  forty  days  after  the  said  in- 
quest be  utterly  abolished,  so  as  never  to  be  restored. 

LVII.  We  will  immediately  give  up  all  hostages  and  engage- 
ments, delivered  unto  us  by  our  English  subjects  as  securities  for 
their  keeping  the  peace,  and  yielding  us  faithful  service. 

LVIII.  We  will  entirely  remove  from  our  bailiwicks  the  relations 
of  Gerard  de  Athyes,  so  as  that  for  the  future  they  shall  have  no  bail- 
iwick in  England.  We  will  also  remove  Engelard  de  Cygony, 
Andrew,  Peter,  and  Gyon  de  Canceles,  Gyon  de  Cygony,  Geoffrey 
de  Martyn  and  his  brothers,  Philip  Mark  and  his  brothers,  and  his 
nephew  Geoffrey,  and  their  whole  retinue. 

LIX.  And  as  soon  as  peace  is  restored,  we  will  send  out  of  the 
kingdom  all  foreign  soldiers,  crossbowmen  and  stipendiaries,  who 
are  come  with  horses  and  arms,  to  the  injury  of  our  people. 

LX.  If  any  one  hath  been  dispossessed  or  deprived  by  us  with- 
out the  legal  judgment  of  his  peers,  of  his  lands,  castles,  liberties 
or  right,  we  will  forthwith  restore  them  to  him  ;  and  if  any  dispute 
arises  upon  this  head,  let  the  matter  be  decided  by  the  five  and 
twenty  barons  hereafter  mentioned,  for  the  preservation  of  the 
peace. 

LXI.  As  for  all  those  things  of  which  any  person  has  without 
the  legal  judgment  of  his  peers  been  dispossessed  or  deprived, 
either  by  king  Henry,  our  father,  or  our  brother,  king  Richard, 
and  which  we  have  in  our  hands,  or  are  possessed  by  others,  and 
we  are  bound  to  warrant  and  make  good,  we  shall  have  a  respite 
till  the  term  usually  allowed  the  Croises ;  excepting  those  things 
about  which  there  is  a  suit  depending,  or  whereof  an  inquest  hath 
been  made  by  our  order,  before  we  undertook  the  crusade.     But 

30 


466  ON  CIVIL  LIBERTY 

when  we  return  from  our  pilgrimage,  or  if  we  do  not  perform  it,  we 
will  immediately  cause  full  justice  to  be  administered  therein. 

LXII.  The  same  respite  we  shall  have  for  disafforesting  the 
forests,  which  Henry,  our  father,  or  our  brother,  Richard,  have  af- 
forested;  and  for  the  wardship  of  lands  which  are  in  another's  fee, 
in  the  same  manner  as  we  have  hitherto  enjoyed  these  wardships, 
by  reason  of  a  fee  held  of  us  by  knight's  service,  and  for  the  ab- 
bies  founded  in  any  other  fee  than  our  own,  in  which  the  lord  of 
the  fee  claims  a  right ;  and  when  we  return  from  our  pilgrimage, 
or  if  we  should  not  perform  it,  we  will  immediately  do  full  justice 
to  all  the  complainants  in  this  behalf. 

LXIII.  No  man  shall  be  taken  or  imprisoned  upon  the  appeal  of 
a  woman,  for  the  death  of  any  other  man  than  her  husband. 

LXIV.  All  unjust  and  illegal  fines,  and  all  amerciaments,  im- 
posed unjustly  and  contrary  to  the  law  of  the  land,  shall  be  en- 
tirely forgiven,  or  else  left  to  the  decision  of  the  five  and  twenty 
barons  hereafter  mentioned  for  the  preservation  of  the  peace,  or  of 
the  major  part  of  them,  together  with  the  foresaid  Stephen,  arch- 
bishop of  Canterbury,  if  he  can  be  present,  and  others  whom  he 
shall  think  fit  to  take  along  with  him  ;  and  if  he  cannot  be  present, 
the  business  shall  nevertheless  go  on  without  him  ;  but  so  that  if 
one  or  more  of  the  five  and  twenty  barons  aforesaid  be  plaintiffs  in 
the  same  cause,  they  shall  be  set  aside  as  to  what  concerns  this  par- 
ticular affair,  and  others  be  chosen  in  their  room  out  of  the  said 
five  and  twenty,  and  sworn  by  the  rest  to  decide  that  matter. 

LXV.  If  we  have  disseised  or  dispossessed  the  Welsh  of  any 
lands,  liberties,  or  other  things,  without  the  legal  judgment  of 
their  peers,  they  shall  be  immediately  restored  to  them.  And  if 
any  dispute  arises  upon  this  head,  the  matter  shall  be  determined 
in  the  Marches,  by  the  judgment  of  their  peers ;  for  tenements  in 
England,  according  to  the  law  of  England ;  for  tenements  in 
Wales,  according  to  the  law  of  Wales ;  for  tenements  in  the 
Marches,  according  to  the  law  of  the  Marches ;  the  same  shall  the 
Welsh  do  to  us  and  our  subjects. 

LXVI.  As  for  all  those  things  of  which  any  Welshman  hath, 
without  the  legal  judgment  of  his  peers,  been  disseised  or  de- 
prived, by  king  Henry,  our  father,  or  our  brother,  king  Richard, 
and  which  we  either  have  in  our  hands,  or  others  are  possessed  of, 
and  we  are  obliged  to  warrant  it,  we  shall  have  a  respite  till  the 
time  generally  allowed   the   Croisaders;    excepting  those  things, 


A  ND  SELF-  G  O  VERNMEXT. 


407 


about  which  a  suit  is  pending,  or  whereof  an  inquest  has  been  made 
by  our  order,  before  we  undertook  the  crusade.  But  when  we  re- 
turn, or  if  we  stay  at  home,  and  do  not  perform  our  pilgrimage, 
we  will  immediately  do  them  full  justice,  according  to  the  laws  of 
the  Welsh,  and  of  the  parts  aforementioned. 

LXVII.  We  will  without  delay  dismiss  the  son  of  Lewelin, 
and  all  tlie  Welsh  hostages,  and  release  them  from  the  engagements 
they  entered  into  with  us  for  the  preservation  of  the  peace. 

LXVIII.  We  shall  treat  with  Alexander,  king  of  Scots,  con- 
cerning the  restoring  of  his  sisters,  and  hostages,  and  rights  and 
liberties,  in  the  same  form  and  manner  as  we  shall  do  to  the  rest 
of  our  barons  of  England ;  unless  by  the  engagements  which  his 
father  William,  late  king  of  Scots,  hath  entered  into  with  us,  it 
ought  to  be  otherwise ;  and  this  shall  be  left  to  the  determination 
of  his  peers  in  our  court. 

LXIX.  All  the  aforesaid  customs  and  liberties  which  we  have 
granted  to  be  holden  in  our  kingdom,  as  much  as  it  belongs  to  us 
towards  our  people,  all  our  subjects,  as  well  clergy  as  laity,  shall 
observe,  as  far  as  they  are  concerned,  towards  their  dependents. 

LXX.  And  whereas,  for  the  honor  of  God  and  the  amendment 
of  our  kingdom,  and  for  quieting  the  discord  that  has  arisen  be- 
tween us  and  our  barons,  we  have  granted  all  the  things  aforesaid ; 
willing  to  render  them  firm  and  lasting,  we  do  give  and  grant  our 
subjects  the  following  security,  namely  :  that  the  barons  may  choose 
five  and  twenty  barons  of  the  kingdom,  whom  they  shall  think  con- 
venient, who  shall  take  care  with  all  their  might  to  hold  and  ob- 
serve, and  cause  to  be  observed,  the  peace  and  liberties  we  have 
granted  them,  and  by  this  our  present  charter  confirmed.  So  as 
that  if  we,  our  justiciary,  our  bailiffs,  or  any  of  our  officers,  shall 
in  any  case  fail  in  the  performance  of  them  towards  any  person,  or 
shall  break  through  any  of  these  articles  of  peace  and  security, 
and  the  offence  is  notified  to  four  barons,  chosen  out  of  the  five  and 
twenty  aforementioned,  the  said  four  barons  shall  repair  to  us,  or 
to  our  justiciary,  if  we  are  out  of  the  realm,  and  laying  open  the 
grievance,  shall  petition  to  have  it  redressed  without  delay;  and  if 
it- is  not  redressed  by  us,  or,  if  we  should  chance  to  be  out  of  the 
realm,  if  it  is  not  redressed  by  our  justiciary  within  forty  days, 
reckoning  from  the  time  it  has  been  notified  to  us,  or  to  our  justi- 
ciary, if  we  should  be  out  of  the  realm,  the  four  barons  aforesaid 
shall  lay  the  cause  before  the  rest  of  the  five  and  twenty  barons,  and 


468 


ON  CIVIL  LIBERTY 


the  said  five  and  twenty  barons,  together  with  the  community  of 
the  whole  kingdom,  shall  distrein  and  distress  us  in  all  the  ways 
possible ;  namely,  by  seising  our  castles,  lands,  possessions,  and  in 
any  other  manner  they  can,  till  the  grievance  is  redressed  to  their 
pleasure,  saving  harmless  our  own  person,  and  the  persons  of  our 
queen  and  children  ;  and  when  it  is  redressed,  they  shall  obey  us  as 
before. 

LXXI.  And  any  person  whatsoever  in  the  kingdom  may  swear 
that  he  will  obey  the  orders  of  the  five  and  twenty  barons  afore- 
said, in  the  execution  of  the  premises,  and  that  he  will  distress  us 
jointly  with  them,  to  the  utmost  of  his  power ;  and  we  give  public 
and  free  liberty  to  any  one  that  will  swear  to  them,  and  never  shall 
hinder  any  person  from  taking  the  same  oath. 

LXXII.  As  for  all  those  of  our  subjects,  who  will  not  of  their 
own  accord  swear  to  join  the  five  and  twenty  barons  in  distreining 
and  distressing  us,  we  will  issue  our  order  to  make  them  take  the 
same  oath  as  aforesaid. 

LXXIII.  And  if  any  one  of  the  five  and  twenty  barons  dies,  or 
goes  out  of  the  kingdom,  or  is  hindered  any  other  way  from  put- 
ting the  things  aforesaid  in  execution,  the  rest  of  the  said  five  and 
twenty  barons  may  choose  another  in  his  room,  at  their  discretion, 
who  shall  be  sworn  in  like  manner  as  the  rest. 

LXXIV.  In  all  things  that  are  committed  to  the  charge  of  these 
five  and  twenty  barons,  if,  when  they  are  all  assembled  together, 
they  should  happen  to  disagree  about  any  matter,  or  some  of 
them  summoned  will  not,  or  cannot  come,  whatever  is  agreed  upon 
or  enjoyned  by  the  major  part  of  those  who  are  present  shall  be 
reputed  as  firm  and  valid  as  if  all  the  five  and  twenty  had  given 
their  consent ;  and  the  foresaid  five  and  twenty  shall  swear  that 
all  the  premises  they  shall  faithfully  observe,  and  cause  with  all 
their  power  to  be  observed. 

LXXV.  And  we  will  not,  by  ourselves  or  others,  procure  anything 
whereby  any  of  these  concessions  and  liberties  be  revoked  or  less- 
ened ;  and  if  any  such  thing  be  obtained,  let  it  be  null  and  void  ; 
neither  shall  we  ever  make  use  of  it,  either  by  ourselves  or  any 
other. 

LXXVI.  And  all  the  ill-will,  anger  and  malice  that  hath  arisen 
between  us  and  our  subjects  of  the  clergy  and  laity,  from  the  first 
breaking  out  of  the  dissension  between  us,  we  do  fully  remit  and 
forgive.     Moreover,  all  trespasses  occasioned  by  the  said  dissen- 


AND   SELF-GOVERNMENT.  469 

sions,  from  Easter,  in  the  sixteenth  year  of  our  reign,  till  the  resto- 
ration of  peace  and  tranquillity,  we  hereby  entirely  remit  to  all, 
clergy  as  well  as  laity,  and  as  far  as  in  us  lies,  do  fully  forgive. 

LXXVII.  We  have  moreover  granted  them  our  letters  patents 
testimonial  of  Stephen,  lord-archbishop  of  Canterbury,  of  Henry, 
lord-archbishop  of  Dublin,  and  the  bishops  aforesaid,  as  also  of 
master  Pandulph,  for  the  security  and  concessions  aforesaid. 

LXXVIII.  Wherefore  we  will,  and  firmly  enjoin,  that  the 
church  of  England  be  free,  and  that  all  men  in  our  kingdom  have 
and  hold  all  the  aforesaid  liberties,  rights  and  concessions,  truly 
and  peaceably,  freely  and  quietly,  fully  and  wholly,  to  themselves 
and  their  heirs,  of  us  and  our  heirs,  in  all  things  and  places  forever, 
as  is  aforesaid. 

LXXIX.  It  is  also  sworn,  as  well  on  our  part  as  upon  the  part 
of  the  barons,  that  all  the  things  aforesaid  shall  faithfully  and  sin- 
cerely be  observed. 

Given  under  our  hand,  in  the  presence  of  the  witnesses  above 
named,  and  many  others,  in  the  meadow  called  Runningmede,  be- 
tween Windelsore  and  Staines,  the  17th  day  of  June,  in  the  17th 
year  of  our  reign. 

[The  Great  Charter  has  been  repeatedly  amended  and  confirmed. 
I  take  the  liberty  of  copying  the  following,  down  to  the  end  of  page 
477,  from  Mr.  Creasy's  Text-Book  of  the  Constitution.'] 


'  The  Text-Book  of  the  Constitution,  Magna  Charta,  The  Petition  of  Right 
and  the  Bill  of  Rights,  with  Historical  Comments  and  Remarks  on  the  Present 
Political  Emergencies,  by  E.  S.  Creasy,  M.A.,  Barrister-at-Law,  Professor  of 
History  in  University  College,  London,  &c.  London,  1848.  A  small  work  of 
63  pages,  excellent  in  its  kind. 

Since  the  first  edition  of  the  Civil  Liberty  was  issued,  Mr.  Creasy  has  published 
The  Rise  and  Progress  of  the  English  Constitution,  London,  1853;  the  third 
edition  of  which  was  republished,  in  1856,  in  New  York,  l2mo,  350  pages.  It  is 
the  best  book  for  the  student  to  commence  the  study  of  the  British  Constitution! 
and  preparatory  for  Hallam's  Constitutional  History  of  England.  Throughout 
the  present  work  it  must  have  appeared  that  a  knowledge  of  the  English  Consti- 
tution and  of  its  history  is  indispensable  for  a  correct  understanding  of  our  own, 
and  I  recommend  the  work  of  Mr.  Creasy,  in  this  point  of  view,  to  every  young 
American  student. 


470  ON  CIVIL  LIBERTY 

MAGNA     CHART  A, 
THE  GREAT  CHARTER, 

(translated  as  in  the  statutes  at  large,) 

made  in  the  ninth  year  of  king  henry  the  third,  and  con- 
FIRMED BY  KING  EDWARD  THE  FIRST,  IN  THE  FIVE  AND  TWEN- 
TIETH   YEAR   OF   HIS   REIGN. 

Edward,  by  the  grace  of  God  king  of  England,  lord  of  Ireland, 
and  duke  of  Guyan  :  to  all  archbishops,  bishops,  &c.  We  have 
seen  the  great  charter  of  the  lord  Henry,  sometimes  king  of  Eng- 
land, our  father,  of  the  liberties  of  England,  in  these  words: 

"Henry,  by  the  grace  of  God  king  of  England,  lord  of  Ireland, 
duke  of  Normandy  and  Guyan,  and  earl  of  Anjou :  to  all  arch- 
bishops, bishops,  abbots,  priors,  earls,  barons,  sheriffs,  provosts,  and 
officers,  and  to  all  bailiffs  and  other  our  faithful  subjects,  which  shall 
see  this  present  charter,  greeting  :  Know  ye,  that  we,  unto  the 
honor  of  almighty  God,  and  for  the  salvation  of  the  souls  of  our 
progenitors  and  successors,  kings  of  England,  to  the  advancement 
of  holy  church  and  amendment  of  our  realm,  of  our  mere  and  free 
will,  have  given  and  granted  to  all  archbishops,  bishops,  abbots, 
priors,  earls,  barons,  and  to  all  freemen  of  this  our  realm,  these 
liberties  following,  to  be  kept  in  our  kingdom  of  England  forever." 

CHAPTER    I. 

A   Confirmation  of  Liberties. 

"  First,  we  have  granted  to  God,  and  by  this  our  present  charter 
have  confirmed  for  us  and  our  heirs  forever,  that  the  church  of 
England  shall  be  free,  and  shall  have  all  her  whole  rights  and  liber- 
ties inviolable.  We  have  granted,  also,  and  given  to  all  the  free- 
men of  our  realm,  for  us  and  our  heirs  forever,  these  liberties 
underwritten,  to  have  and  to  hold  to  them  and  their  heirs,  of  us 
and  our  heirs  forever." 

CHAPTER    II. 

T/ie  Relief  of  the  King's  Tenant  of  full  Age. 
[Same  as  2d  chapter  of  John's  Charter.] 


AND  SELF-GOVERNMENT.  47 1 

CHAPTER  III. 

The  Wardship  of  the  Heir  within  Age.     The  Heir  a  Ktiight. 

[Similar  to  3d  chapter  of  John's  Charter.] 

CHAPTER   IV. 

yo  waste  shall  be  made  by  a  Guardian  in  waste  lands. 
[Same  as  4th  chapter  of  John's  Charter.] 

CHAPTER   V. 

G^irdians  shall  maififain  the  Inheritance   of  Wards,       Of 

Bishopries,  d^c. 
•  Similar  to  5th  chapter  of  John's  Charter,  with  addition  of  like 
provisions  against  the  waste  of  ecclesiastical  possessions  while  in 
the  king's  hand  during  a  vacancy  in  the  see,  &c.] 

CHAPTER  VI. 

Heirs  shall  be  Married  without  Disparagement. 

[Similar  to  6th  chapter  of  John's  Charter.] 

CHAPTER   VII. 

A  Widow  shall  have  her  Marriage,  Inheritance,  and  Quarantine. 

The  King's  Widow,  &'c. 

[Similar  (with  additions)  to  the  7th  and  8th  chapters  of  John's 

Charter.] 

CHAPTER   VIII. 

How  Sureties  shall  be  chatged  to  the  King. 

[Same  as  9th  chapter  of  John's  Charter.] 

CHAPTER   IX. 

The  liberties  of  London  and  other  Cities  and  Towns  confirmed. 

[Same  as  13th  chapter  of  John's  Charter.] 

CHAPTER  X. 

N'one  shall  distrain  for  more  Service  than  is  due. 

[Same  as  i6th  chapter  of  John's  Charter.] 

CHAPTER  XI. 

Common  Pleas  shall  not  follow  the  King's  Court. 

[Same  as  17th  chapter  of  John's  Charter.] 


472 


ON  CIVIL   LIBERTY 


CHAPTERS   XII.  &   XIII. 
When  and  before  whom  Assizes  shall  be  taken.     Adjournment 
for  Difficulty.     Assizes  of  Darrein  Presentment. 
[Analogous  to  iSth  and  19th  chapters  of  John's  Charter.] 

CHAPTER   XIV. 

How  Men  of  all  sorts  shall  be  amerced,  a7id  by  whom. 

[Same  as  20th  and  21st  chapters  of  John's  Charter.] 

CHAPTERS   XV.  &   XVI. 
Making  and  defending  of  Bridges  and  Banks. 
[Similar  to  23d  chapter  of  John's  Charter,] 

CHAPTER   XVII. 

Holding  Pleas  of  the  Crown. 

[Same  as  24th  chapter  of  John's  Charter.] 

CHAPTER  XVIII. 

The  King's  Debtor  dying,  the  King  shall  be  first  paid. 

[Same  as  26th  chapter  of  John's  Charter.] 

CHAPTERS   XIX.,  XX.,  &   XXI. 

Purveyors  for  a  Castle.      Doing  of  Castle-ward.      Taking  of 

Horses,  Carts,  and  Woods. 

[Same  as  28th,  29th,  30th,  and  31st  chapters  of  John's  Charter.] 

CHAPTER  XXII. 

How  long  Felons'  Lands  shall  be  holden  by  the  King. 

[Same  as  32d  chapter  of  John's  Charter.] 

CHAPTER   XXIII. 
In  what  places  Wears  shall  be  put  down. 
[Same  as  33d  chapter  of  John's  Charter.] 

CHAPTER   XXIV. 

In  what  case  a  Pr<^cipe  in  Capite  is  grantable. 

[Same  as  14th  chapter  of  John's  Charter.] 


AND  SELF-GOVERNMENT.  473 

CHAPTER   XXV. 

There  shall  be  but  one  Measure  through  the  Realm. 

[Same  as  35th  chapter  of  John's  Charter.] 

CHAPTER    XXVI. 

Inquisition  of  Life  and  Mefnber. 

[Same  as  38th  chapter  of  John's  Charter.] 

CHAPTER   XXVH. 

Tenure  of  the  King  in  Socage,  and  of  another  by  Knight's  Service. 

Petit  Serjeanty. 

[Same  as  37th  chapter  of  John's  Charter.] 

CHAPTER  XXVHI. 
Wager  of  Law  shall  not  be  without  witness. 
[Same  as  3Sth  chapter  of  John's  Charter.] 

-   CHAPTER   XXIX. 

None  shall  be  condemned  without  Trial.    Justice  shall  not  be  sold 

or  deferred.^ 

"No  freeman  shall  be  taken,  or  imprisoned,  or  be  disseised  of 
his  freehold,  or  liberties,  or  free  customs,  or  be  outlawed  or  exiled, 
or  any  otherwise  destroyed ;  nor  will  we  pass  upon  him,  nor  con- 
demfi  him,  but  by  lawful  judgment  of  his  peers,  or  by  the  law  of  the 
land.  We  will  sell  to  no  man,  we  will  not  deny  or  defer  to  any 
man,  either  justice  or  right." 

CHAPTER  XXX. 

Merchant  Strangers  coming  into  this  Reabn  shall  be  well  used. 

[Same  as  41st  chapter  of  John's  Charter.] 

CHAPTER    XXXI. 

Tenure  of  a  Barony  coming  into  the  King's  hands  by  Escheat. 

[Same  as  43d  chapter  of  John's  Charter.] 


See  39th  and  40th  chapters  of  John's  Charter. 


474 


ON  CIVIL   LIBERTY 


CHAPTER   XXXII. 

Lands  shall  not  he  Aliened  to  the  Prejudice  of  the  Lord'' s  Service 

[i.  e.  Lord  of  the  Fee^ 

CHAPTER    XXXIII. 
Fatrotis  of  Abbeys  shall  have  the  custody  of  them  in  time  of  Vaca- 
tion. 
[Same  as  46th  chapter  of  John's  Charter.] 

CHAPTER   XXXIV. 

In  what  cases  only  a  Woman  shall  have  an  Appeal  of  Death. 

[Same  as  51st  chapter  of  John's  Charter.] 

CHAPTER   XXXV. 
At  what  time  shall  be  kept  a  County  Court,  a  Sheriff'' s  Term,  and 

a  Leet. 

CHAPTER  XXXVI. 
JVo  Land  shall  be  given  in  Mortmain. 
"  It  shall  not  be  lawful  from  henceforth  to  any  to  give  his  lands 
to  any  religious  house,  and  to  take  the  same  land  again  to  hold  of 
the  same  house.  Nor  shall  it  be  lawful  to  any  house  of  religion  to 
take  the  lands  of  any,  and  to  lease  the  same  to  him  of  whom  he 
received  it :  if  any  from  henceforth  give  his  lands  to  any  religious 
house,  and  thereupon  be  convict,  the  gift  shall  be  utterly  void,  and 
the  land  shall  accrue  to  the  lord  of  the  fee." 

CHAPTER  XXXVI. 
A  Subsidy  in  respect  of  this  Charter  and  the  Charter  of  the  Forest 
granted  to  the  King. 
"  Escuage  from  henceforth  shall  be  taken  like  as  it  was  wont  to 
be  in  the  time  of  king  Henry,  our  grandfather  ;  reserving  to  all 
archbishops,  bishops,  abbots,  priors,  templars,  hospitalers,  earls, 
barons,  and  all  persons,  as  well  spiritual  as  temporal,  all  their  free 
liberties  and  free  customs,  which  they  have  had  in  time  past.  And 
all  these  customs  and  liberties  aforesaid,  which  we  have  granted  to 
be  holden  within  this  our  realm,  as  much  as  appertaineth  to  us  and 
our  heirs,  we  shall  observe.     And    all  men  of  this  our   realm,  as 


AND  SELF-  C  O  VERNMENT. 


475 


well  spiritual  as  temporal  (as  much  as  in  them  is),  shall  observe 
the  same  against  all  persons  in  like  wise.  And  for  this  our  gift 
and  grant  of  these  liberties,  and  of  others  contained  in  our  charter 
of  liberties  of  our  forest,  the  archbishops,  bishops,  abbots,  priors, 
earls,  barons,  knights,  freeholders,  and  other  our  subjects,  have 
given  unto  us  the  fifteenth  part  of  all  their  moveables.  And  we 
have  granted  unto  them,  for  us  and  our  heirs,  that  neither  we  nor 
our  heirs  shall  procure  or  do  anything  whereby  the  liberties  in  this 
charter  contained  shall  be  infringed  or  broken.  And  if  anything 
be  procured  by  any  person  contrary  to  the  premises,  it  shall  be  had 
of  no  force  nor  effect.  These  being  witnesses  :  Lord  B.,  archbishop 
of  Canterbury,  E.,  bishop  of  London,  L,  bishop  of  Bath,  P.,  of 
Winchester,  H.,  of  Lincoln,  R.,  of  Salisbury,  W.,  of  Rochester, 
W.,  of  Worcester,  J.,  of  Ely,  H.,  of  Hereford,  R.,  of  Chichester, 
W.,  of  Exeter,  bishops;  the  abbot  of  St.  Edmonds,  the  abbot  of 
St.  Albans,  the  abbot  of  Bello,  the  abbot  of  St.  Augustine's  in 
Canterbury,  the  abbot  of  Evesham,  the  abbot  of  Westminster,  the 
abbot  of  Bourgh  St.  Peter,  the  abbot  of  Reding,  the  abbot  of 
Abindon,  the  abbot  of  Malmsbury,  the  abbot  of  Winchcomb,  the 
abbot  of  Hyde,  the  abbot  of  Certesy,  the  abbot  of  Sherburn,  the 
abbot  of  Cerne,  the  abbot  of  Abbotebir,  the  abbot  of  Middleton, 
the  abbot  of  Seleby,  the  abbot  of  Cirencester  ;  H.  de  Burgh,  jus- 
tice, H.,  earl  of  Chester  and  Lincoln,  W.,  earl  of  Salisbury,  W., 
earl  of  Warren,  G.  de  Clare,  earl  of  Gloucester  and  Hereford,  W. 
de  Ferrars,  earl  of  Derby,  W.  de  Mandeville,  earl  of  Essex,  H.  de 
Bygod,  earl  of  Norfolk,  W.,  earl  of  Albemarle,  H.,  earl  of  Here- 
ford, J.,  constable  of  Chester,  R.  de  Ros,  R.  Fitzwalter,  R.  de 
Vyponte,  W.  de  Bruer,  R.  de  Muntefichet,  P.  Fitzherbert,  W.  de 
Aubenie,  J.  Gresly,  F.  de  Breus,  J.  de  Monemue,  J.  Fitzallen,  H. 
de  Mortimer,  W.  de  Beauchamp,  W.  de  St.  John,  P.  de  Mauly, 
Brian  de  Lisle,  Thomas  de  Multon,  R.  de  Argenteyn,  G.  de  Nevil, 
W.  Mauduit,  J.  de  Balun,  and  others." 

We,  ratifying  and  approving  these  gifts  and  grants  atoresaid, 
confirm  and  make  strong  all  the  same  for  us  and  our  heirs  per- 
petually ;  and  by  the  tenor  of  these  presents  do  renew  the  same, 
willing  and  granting  for  us  and  our  heirs  that  this  charter,  and  all 
and  singular  its  articles,  forever  shall  be  stedfastly,  firmly  and  in- 
violably observed.  Although  some  articles  in  the  same  charter 
contained  yet  hitherto  peradventure  have  not  been  kept,  we  will 
and,  by  authority  royal,  command  from  henceforth  firmly  they  be 


476 


ON  CIVIL  LIBERTY 


observed.  In  witness  whereof,  we  have  caused  these  our  letters 
patent  to  be  made.  T.  Edward,  our  son,  at  Westminster,  the 
twelfth  day  of  October,  in  the  twenty-fifth  year  of  our  reign. 

Magna  Charta,  in  this  form,  has  been  solemnly  confirmed  by  our 
kings  and  parliaments  upwards  of  thirty  times ;  but  in  the  twenty- 
fifth  year  of  Edward  I.  much  more  than  a  simple  confirmation  of 
it  was  obtained  for  England.  As  has  already  been  mentioned,  the 
original  charter  of  John  forbade  the  levying  of  escuage,  save  by 
consent  of  the  great  council  of  the  land ;  and  although  those  im- 
portant provisions  were  not  repeated  in  Henry's  charter,  it  is  cer- 
tain that  they  were  respected.  Henry's  barons  frequently  refused 
him  the  subsidies  which  his  prodigality  was  always  demanding. 
Neither  he  nor  any  of  his  ministers  seems  ever  to  have  claimed  for 
the  crown  the  prerogative  of  taxing  the  landholders  at  discretion ; 
but  the  sovereign's  right  of  levying  money  from  his  towns  and 
cities,  under  the  name  of  tallages  or  prises,  was  constantly  exer- 
cised during  Henry  III.'s  reign,  and  during  the  earlier  portion  of 
his  son's.  But,  by  the  statute  of  Edward  I.  intituled  Confijinatio 
Chartarum,  all  private  property  was  secured  from  royal  spoliation, 
and  placed  under  the  safeguard  of  the  great  council  of  all  the 
realm.     The  material  portions  of  that  statute  are  as  follows : 


CONFIRMATIO    CHARTARUM. 

ANNO  VICESIMO   QUINTO    EDV.  I. 

CAP.  V. 

And  for  so  much  as  divers  people  of  our  realm  are  in  fear  that 
the  aids  and  tasks  which  they  have  given  to  us  beforetime,  towards 
our  wars  and  other  business,  of  their  own  grant  and  good  will 
(howsoever  they  were  made),  might  turn  to  a  bondage  to  them  and 
their  heirs,  because  they  might  be  at  another  time  found  in  the 
rolls,  and  likewise  for  the  prises  taken  throughout  the  realm,  in  our 
name,  by  our  ministers,  we  have  granted  for  us  and  our  heirs  that 
we  shall  not  draw  such  aids,  tasks,  nor  prises,  into  a  custom  for 
anything  that  hath  been  done  heretofore,  be  it  by  roll  or  any  other 
precedent  that  may  be  founden. 


AND  SELF-GOVERNMENT. 


CAP.  VI. 


477 


Moreover,  we  have  granted  for  us  and  our  heirs,  as  well  to  arch- 
bishops, bishops,  abbots,  priors,  and  other  folk  of  holy  church,  as 
also  to  earls,  barons,  and  to  all  the  commonalty  of  the  land,  that 
for  no  business  from  thenceforth  we  shall  take  such  man7ier  of  aids, 
tasks,  nor  prises,  but  by  the  common  assejit  of  all  ^  the  realm,  aiid  for 
the  conwion  profit  thereof,  saving  the  ancient  aids  and  prises  due 
and  accustomed. 


'  "  Par  commiin  assent  de  tut\&  roiaume."     The  version  in  our  statute-book 
omits  the  important  word  "All." 


APPENDIX  V. 

THE   PETITION   OF   RIGHT.' 

To  the  King' s  Most  Excellent  Majestie. 

Humbly  shew  unto  our  Sovereign  Lord  the  King,  the  Lords 
Spiritual  and  Temporal,  and  Commons  in  Parliament  assembled, 
that  whereas  it  is  declared  and  enacted  by  a  Statute,  made  in  the' 
tyme  of  the  Raigne  of  King  Edward  the  first,  commonly  called 
"  Statutum  de  Tallagio  non  concedendo,"  that  no  Tallage  or  Aide 
should  be  laid  or  levied,  by  the  King  or  his  heires,  in  this  Realme; 
without  the  good-will  and  assent  of  the  Arch  Bishopps,  Bishopps, 
Earles,  Barons,  Knights,  Burgesses  and  other  tlie  freemen  of  the 
cominalty  of  this  realme  ;  And  by  Authority  of  Parliament  houlden 
in  the  five  and  twentieth  yere  of  the  Raigne  of  King  Edward  the 
third,  it  is  declared  and  enacted,  that  from  thenceforth  noe  person 
should  be  compelled  to  make  any  loanes  to  the  King  against  his 
will,  because  such  loanes  were  against  reason,  and  the  franchise  of 
the  land;  and  by  other  lawes  of  this  realme  it  is  provided,  that 
none  should  be  charged  by  any  charge  or  imposition,  called  a 
Benevolence,  nor  by  such  like  charge,  by  which  the  Statuts  before 
mentioned,  and  other  the  good  lawes  and  statuts  of  this  Realme, 
your  Subjects  have  inherited  this  freedom,  that  they  should  not  be 
compelled  to  contribute  to  any  Tax,  Tallage,  Aide,  or  other  like 
charge,  not  sett  by  common  consent  in  Parliament. 

Yet  nevertheless  of  late,  divers  commissions,  directed  to  sundrie 
commissioners  in  severall  Counties,  with  instructions,  have  been 
issued,  by  means  whereof  your  People  have  bene  in  divers  places 
assembled,  and  required  to  lend  certaine  sommes  of  money  unto 
your  Majestie,  and  many  of  them  upon  their  refusall  soe  to  doe, 
have  had  an  oath  administered  unto  tiiem,  not  warrantable  by  the 


*  This  petition  was  drawn  up  by  Sir  Edward  Coke.     Coke,  207,  edit,  of  1697. 
478 


ON  CIVIL  LIBERTY  AND  SELF-GOVERNMENT. 


479 


Lawes  or  Statuts  of  this  Realme,  and  have  been  constrained  to  be- 
come bound  to  make  appearance,  and  give  attendance  before  your 
Privie  Councell,  and  in  other  places;  and  others  of  them  have 
beene  therefore  imprisoned,  confined,  and  sundrie  other  wayes  mo- 
lested and  disquieted :  And  divers  other  charges  have  bene  laid 
and  leavied  upon  your  People  in  severall  Counties,  by  Lord  Lieu- 
tenants, Deputie-Lieutenants,  Commissioners  for  musters.  Justices 
of  peace  and  others,  by  commaunde  or  direction  from  your  Majes- 
tic, or  your  Privie-Councell,  against  the  lawes  and  free  customes  of 
the  realme. 

And  whereas  alsoe  by  the  Statute  called  "The  greate  Charter  of 
the  Liberties  of  England,"  it  is  declared  and  enacted,  that  noe 
freeman  may  be  taken  or  imprisoned,  or  be  disseised  of  his  freehold 
or  liberties,  or  his  free  customes,  or  be  outlawed  or  exiled,  or  in 
any  manner  destroyed,  but  by  the  lawfull  judgment  of  his  Peeres, 
or  by  the  lawe  of  the  land. 

And  in  the  eight  and  twentieth  yere  of  the  reigne  of  King  Ed- 
ward the  third,  it  was  declared  and  ennacted  by  Authoritie  of  Par- 
liament, that  no  man,  of  what  estate  or  condition  that  he  be,  should 
be  putt  out  of  his  lands  or  tenements,  nor  taken  nor  imprisoned, 
nor  disherited,  nor  putt  to  death,  without  being  brought  to  answer 
by  due  process  of  lawe. 

Nevertheless  against  the  tenour  of  the  said  Statutes,  and  other 
the  good  lawes  and  Statuts  of  your  Realme,  to  that  end  provided, 
divers  of  your  subjects  have  of  late  bene  imprisoned  without  any 
cause  showed  ;  and  when  for  .their  deliverance  they  were  brought 
before  your  Justices,  by  your  Majestie's  Writ  of  Habeas  Corpus, 
there  to  undergoe  and  receive,  as  the  Court  should  order,  and  their 
Keepers  commaunded  to  certify  the  causes  of  their  detayner  ;  noe 
cause  was  certified,  but  that  they  were  detayned  by  your  Majestie's 
special  commaund,  signified  by  the  Lords  of  your  Privie  Councell, 
and  yet  were  returned  back  to  severall  prisons,  without  being 
charged  with  any  thynge  to  which  they  might  make  answeare  ac- 
cording to  the  lawe. 

And  whereas  of  late,  great  companies  of  souldiers  and  marriners 
have  bene  dispersed  into  divers  Counties  of  the  Realme,  and  the 
inhabitants  against  their  wills  have  been  compelled  to  receive  them 
into  their  houses,  and  there  to  suffer  them  to  sojorne,  against  the 
lawes  and  customes  of  this  realme,  and  to  the  great  grievance  and 
vexation  of  the  People. 


48o 


ON  CIVIL  LIBERTY 


And  whereas  alsoe,  by  authority  of  Parliament,  in  the  25th  yere 
of  the  raigne  of  King  Edward  III.,  it  is  declared  and  enacted  that 
noe  man  should  be  forejudged  of  life  or  lymbe,  against  the  forme 
of  the  great  Charter,  and  the  lawe  of  the  land,  and  by  the  said 
great  Charter,  and  other  the  Laws  and  Statuts  of  this  your 
Realme,  no  man  ought  to  be  adjudged  to  death,  but  by  the  lawes 
established  in  this  your  realme,  either  by  the  customes  of  the  same 
realme,  or  by  Acts  of  Parliament ;  And  whereas  noe  offender,  of 
what  kind  soever,  is  exempted  from  the  proceedings  to  be  used, 
and  the  punishments  to  be  inflicted  by  the  lawes  and  statutes  of 
this  your  realme ;  nevertheless  of  late  time,  divers  commissions 
under  your  Majestie's  Create  Scale  have  issued  forth,  by  which 
certaine  persons  have  been  assigned  and  appointed  commissioners, 
with  power  and  authoritie  to  proceed  within  the  land,  according 
to  the  justice  of  martiall  lawe,  against  such  souldiers  and  marri- 
ners,  or  other  dissolute  persons  joining  with  them,  as  should  com- 
mit any  murder,  robbery,  felonie,  meeting,  or  other  outrage  or 
misdemeanour,  whatsoever ;  and  by  such  summarie  course  and 
order  as  is  agreeable  to  martiall  lawe,  and  as  is  used  in  armies  in 
tyme  of  war,  to  proceed  to  the  tryal  and  condemnation  of  such 
offenders,  and  them  to  cause  to  be  executed  and  putt  to  death,  ac- 
cording to  the  lawe  martiall. 

By  pretext  whereof,  some  of  your  Majestie's  Subjects  have  bene 
by  some  of  the  said  commissioners  put  to  death,  when  and  where, 
if  lawes  and  statuts  of  the  land  they  had  deserved  death,  by  the 
same  lawes  and  statuts  alsoe  they  might,  and  by  noe  other  ought,  to 
have  been  judged  and  executed. 

And  alsoe  sundrie  grievous  offenders,  by  colour  thereof  clayminge 
an  exemption,  have  escaped  the  punishments  due  to  them  by  the 
lawes  and  statuts  of  this  your  realm,  by  reason  that  divers  of  your 
officers  and  ministers  of  justice  have  unjustly  refused  or  forborne  to 
proceed  against  such  offenders,  according  to  the  same  lawes  and 
statuts,  upon  pretence  that  the  said  offenders  were  punishable  only 
by  martiall  lawe,  and  by  authority  of  such  commissions  as  afore- 
said ;  which  commissions,  and  all  others  of  like  nature,  are  wholely 
and  directlie  contrary  to  the  said  lawes  and  statuts  of  this  your  realme. 

They  doe  therefore  humbly  pray  your  most  excellent  Majestic, 
That  no  man  hereafter  be  compelled  to  make  or  yielde  any  guiftc, 
loane,  benevolence,  tax,  or  such  like  charge,  without  common  con- 
sent by  Act  of  Parliament ;  and  that  none  be  called  to  make  an- 


A.XD  SELF-GOVERNMENT.  481 

sweare,  or  take  such  oath,  or  to  give  attendance,  or  be  confyued,  or 
otherwise  molested  or  disquieted  concerning  the  same,  or  for  refusal 
thereof:  And  that  noe  freeman,  in  any  such  manner  as  is  before 
mentioned,  be  imprisoned  or  detayned  :  And  that  your  Majestie 
would  be  pleased  to  remove  the  said  souldiers  and  marriners,  and 
that  your  People  may  not  be  soe  burthened  in  the  tyme  to  come : 
And  that  the  aforesaid  commissions  for  proceedinge  by  martiall 
lawe,  may  be  revoaked  and  annulled  :  and  that  hereafter,  noe  com- 
missions of  like  nature  may  issue  forth  to  any  person  or  persons 
whatsoever,  to  be  executed  as  aforesaid,  least  by  colour  of  them, 
any  of  your  Majestie's  subjects  be  destroyed,  or  putt  to  death,  con- 
trary to  the  lawes  and  franchise  of  the  land. 

All  which  they  do  most  humbly  pray  of  your  most  excellent  Ma- 
jestie, as  their  Rights  and  Liberties,  according  to  the  lawes  and 
statuts  of  this  Realme  :  And  that  your  Majestie  would  also  vouch- 
safe to  declare,  that  the  awardes,  doeings,  and  proceedings,  to  the 
prejudice  of  your  People,  in  any  of  the  premises,  shall  not  be 
drawn  hereafter  into  consequence  or  example :  And  that  your 
Majestie  would  be  alsoe  graciously  pleased,  for  the  further  comfort 
and  safetie  of  your  people,  to  declare  your  royal  will  and  pleasure, 
That  in  the  things  aforesaid  all  your  officers  and  ministers  shall 
serve  you,  according  to  the  lawes  and  statuts  of  this  realme,  as 
they  tender  the  honour  of  your  Majestie,  and  the  prosperity  of  this 
Kingdom. 

The  Kwg's  A?iswer  to  the  Petition  of  Right. 

The  King  willeth  that  Right  be  done,  according  to  the  laws  and 
customs  of  the  realme ;  and  that  the  Statutes  be  put  in  due  exe- 
cution, that  his  subjects  may  have  no  cause  to  complain  of  any 
wrong  or  oppressions,  contrary  to  their  just  Rights  and  Liberties, 
to  the  preservation  whereof  he  holds  himself  in  conscience  as  well 
obliged,  as  of  his  prerogative. 

Petition  of  both  Houses  to  the  King,  on  the  yth  day  of  June,  1628, 
wherein  a  more  full  and  satisfactory  answer  to  the  above  Petition 
is  prayed  for. 

May  it  please  your  most  excellent  Majestie,  the  Lords  Spiritual 
and  Temporal,  and  Commons  in  Parliament  assembled,  taking  in 
consideration  that  the  good  intelligence  between  your  Majestie  and 

31 


482     ON  CIVIL  LIBERTY  AND  SELF-GOVERNMENT. 

your  People,  doth  much  depend  upon  your  Majestie's  answer  upon 
their  Petition  of  Right,  formerly  presented ;  with  unanimous  con- 
sent do  now  become  most  humble  suitors  unto  your  Majestic,  that 
you  would  be  pleased  to  give  a  clear  and  satisfactory  answer  there- 
unto in  full  Parliament. 

To  which  Petition  the  King  replied : 

The  answer  I  have  already  given  you  was  made  with  so  good 
deliberation,  and  approved  by  the  judgments  of  so  many  wise  men, 
that  I  could  not  have  imagined  but  that  it  would  have  given  you  full 
satisfaction  :  But  to  avoid  all  ambiguous  interpretations,  and  to 
show  you  there  is  no  doubleness  in  my  meaning,  I  am  willing  to 
pleasure  you  as  well  in  words  as  in  substance :  Read  your  petition, 
and  you  shall  have  an  answer  that  I  am  sure  will  please  you. 

Here  the  petition  was  read,  and  the  following  ansv/er  was  re- 
turned:   "  Soit  Droit  fait  comme  il  est  desire."  C.  R. 

Then  said  his  Majesty  : 

This  I  am  sure  is  full,  yet  no  more  than  I  granted  you  in  my 
first  answer,  for  the  meaning  of  that,  was  to  confirm  your  liberties, 
knowing  according  to  your  own  protestations,  that  you  neither  mean 
nor  can  hurt  my  prerogative.  And  I  assure  you,  my  maxim  is, 
that  the  People's  liberties  strengthen  the  King's  Prerogative,  and 
the  King's  Prerogative  is  to  defend  the  People's  Liberties. 

You  see  how  ready  I  have  shown  myself  to  satisfy  your  demand, 
so  that  I  have  done  my  part ;  wherefore  if  this  parliament  have  not 
a  happy  conclusion,  the  sin  is  yours,  I  am  free  from  it. 

[The  above  is  the  Answer  of  the  King  in  Parliament,  and  his 
Speech  on  that  occasion,  June  7th,  1628.] 


APPENDIX   VI. 

AN  ACT  FOR  THE  BETTER  SECURING  THE  LIBERTY  OF 
THE  SUBJECT,  AND  FOR  PREVENTION  OF  IMPRISON- 
MENTS BEYOND  THE  SEAS,  COMMONLY  CALLED  "THE 
HABEAS   CORPUS   ACT."  i 

31  CH.  II.,  Ch.  2,  MAY,  1679. 

Whereas  great  delays  have  been  used  by  sheriffs,  gaolers  and 
other  ofificers,  to  whose  custody  any  of  the  king's  subjects  have  been 
committed,  for  criminal  or  supposed  criminal  matters,  in  making 
returns  of  writs  of  habeas  corpus,  to  them  directed,  by  standing  out 
on  alias  or  pluries  habeas  corpus,  and  sometimes  more,  and  by  other 
shifts  to  avoid  their  yielding  obedience  to  such  writs,  contrary  to 
their  duty  and  the  known  laws  of  the  land,  whereby  many  of  the 
king's  subjects  have  been,  and  hereafter  may  be,  long  detained  in 
prison,  in  such  cases  where  by  law  they  are  bailable,  to  their  great 
charge  and  vexation  : 

II.^For  the  prevention  whereof,  and  the  more  speedy  relief  of 
all  persons  imprisoned  for  any  such  criminal  or  supposed  criminal 
matters;  (2)  Be  it  enacted,  by  the  king's  most  excellent  majesty,  by 
and  with  the  advice  and  consent  of  the  lords  spiritual  and  temporal, 
and  commons  in  this  present  parliament  assembled,  and  by  the  au' 
tho7'ity  thereof.  That  whensoever  any  person  or  persons  shall  bring 
any  habeas  corpus  directed  unto  any  sheriff  or  sheriffs,  gaoler,  min- 
ister, or  other  person  whatsoever,  for  any  person  in  his  or  their 
custody,  and  the  said  writ  shall  be  served  upon  the  said  officer,  or 
left  at  the  gaol  or  prison  with  any  of  the  under-ofificers,  under- 
keepers,  or  deputy  of  the  said  ofificers  or  keepers,  that  the  said 
officer  or  ofificers,  his  or  their  under-officers,  under-keepers  or 
deputies,  shall  within  three  days  after  the  service  thereof,  as  afore- 
A 

•  Copied  from  the  Statutes  at  Large,  by  Danby  Pickering,  Esq.,  edit.  1763, 
vol.  8,  p.  432. 

483 


484 


ON  CIVIL   LIBERTY 


said  (unless  the  commitment  aforesaid  were  for  treason  or  felony 
plainly  and  especially  expressed  in  the  warrant  of  commitment), 
upon  payment  or  tender  of  the  charges  of  bringing  the  said  prisoner, 
to  be  ascertained  by  the  judge  or  court  that  awarded  the  same,  and 
endorsed  upon  the  said  writ,  not  exceeding  12  pence  per  mile,  and 
upon  security  given  by  his  own  bond  to  pay  the  charges  of  carry- 
ing back  the  prisoner,  if  he  shall  be  remanded  by  the  court  or  judge 
to  which  he  shall  be  brought,  according  to  the  true  intent  of  this 
present  act,  and  that  he  will  not  make  any  escape  by  the  way,  make 
return  of  such  writ ;  (3)  and  bring,  or  cause  to  be  brought,  the 
body  of  the  party  so  committed  or  restrained,  unto  or  before  the 
lord  chancellor,  or  lord  keeper  of  the  great  seal  of  England,  for 
the  time  being,  or  the  judges  or  barons  of  the  said  court,  from 
whence  the  said  writ  shall  issue,  or  unto  and  before  such  other  per- 
son or  persons  before  whom  the  said  writ  is  made  returnable,  ac- 
cording to  the  command  thereof;  (4)  and  shall  then  likewise  certify 
the  true  causes  of  his  detainer  or  imprisonment,  unless  the  commit- 
ment of  the  said  party  be  in  any  place  beyond  the  distance  of 
twenty  miles  from  the  place  or  places  where  such  court  or  person  is, 
or  shall  be  residing ;  and  if  beyond  the  distance  of  20  miles,  and 
not  above  100  miles,  then  within  the  space  of  ten  days,  and  if 
beyond  the  distance  of  100  miles,  then  within  the  space  of  20  days 
after  such  delivery  aforesaid,  and  not  longer. 

III.  And  to  the  intent  that  no  sheriff,  gaoler  or  other  officer  may 
pretend  ignorance  of  the  import  of  any  such  writ;  (2)  Be  it  en- 
acted by  the  authority  aforesaid,  that  all  such  writs  shall  be  marked 
in  this  manner:  "Per  statutum,  tricesimo  primo  Caroli  secundi 
Regis,"  and  shall  be  signed  by  the  person  that  awards  the  same; 

(3)  and  if  any  person  or  persons  shall^be  or  stand  committed  or 
detained  as  aforesaid,  for  any  crime,  unless  for  felony  or  treason, 
plainly  expressed  in  the  warrant  of  commitment,  in  the  vacation 
time  and  out  of  term  it  shall  and  may  be  lawful  to  and  for  the  per- 
son or  persons  so  committed  or  detained  (other  than  persons  con- 
vict or  in  execution  by  legal  process),  or  any  one  in  his  or  their 
behalf,  to  appeal  or  complain  to  the  lord  chancellor  or  lord  keeper, 
or  any  one  of  his  majesty's  justices,  either  of  the  one  bench  or  of 
the  other,  or  the  barons  of  the  exchequer  of  the  degree  of  the  coif; 

(4)  and  the  said  lord  chancellor,*lord  keeper,  justices  or  barons,  or 
any  of  them,  upon  view  of  the  copy  or  copies  of  the  warrant  or 
warrants  of  commitment  and  detainer,  or  otherwise  upon  oath  made 


AND   SELF-GOVERNMENT.  485 

that  such  copy  or  copies  were  denied  to  be  given  by  such  person 
or  persons  in  whose  custody  the  prisoner  or  prisoners  is  or  are  de- 
tained, are  hereby  authorized  and  required,  upon  request  made  in 
writing  by  such  person  or  persons,  or  any  on  his,  her,  or  their  be- 
half, attested  and  subscribed  by  two  witnesses  who  were  present  at 
the  delivery  of  the  same,  to  award  and  grant  an  habeas  corpus, 
under  the  seal  of  such  court  whereof  he  shall  then  be  one  of  the 
judges,  (5)  to  be  directed  to  the  officer  or  officers  in  whose  custody 
the  party  so  committed  or  detained  shall  be,  returnable  immediate 
before  the  said  lord  chancellor  or  lord  keeper,  or  such  justice, 
baron,  or  any  other  justice  or  baron  of  the  degree  of  the  coif,  of 
any  of  the  said  courts ;  (6)  and  upon  service  thereof  as  aforesaid, 
the  officer  or  officers,  his  or  their  under-officer  or  under-officers, 
under-keeper  or  under-keepers,  or  their  deputy,  in  whose  custody 
the  party  is  so  committed  or  detained,  shall  within  the  time  respect- 
ively before  limited,  bring  such  prisoner  or  prisoners  before  the 
said  lord  chancellor,  or  lord  keeper,  or  such  justices,  barons,  or 
one  of  them,  before  whom  the  said  writ  is  made  returnable,  and  in 
case  of  his  absence,  before  any  other  of  them,  with  the  return  of 
such  writ  and  the  true  causes  of  the  commitment  or  detainer;  (7) 
and  thereupon,  within  two  days  after  the  party  shall  be  brought 
before  them,  the  said  lord  chancellor  or  lord  keeper,  or  such  justice 
or  baron  before  whom  the  prisoner  shall  be  brought  as  aforesaid, 
shall  discharge  the  said  prisoner  from  his  imprisonment,  taking  his 
or  their  recognizance,  with  one  or  more  surety  or  sureties,  in  any 
sum  according  to  their  discretions,  having  regard  to  the  quality  of 
the  prisoner  and  the  nature  of  the  offence,  for  his  or  their  appear- 
ance in  the  court  of  king's  bench  the  term  following,  or  at  the 
next  assizes,  sessions,  or  general  gaol  delivery,  of  or  for  such  county, 
city  or  place  where  the  commitment  was,  or  where  the  offence  was 
committed,  or  in  such  other  court  where  the  said  offence  is  properly 
cognizable,  as  the  case  shall  require,  and  then  shall  certify  the  said 
writ  with  the  return  thereof,  and  the  said  recognizance  or  recog- 
nizances into  the  said  court  where  such  appearance  is  to  be  made; 
(8)  unless  it  shall  appear  to  the  said  lord  chancellor,  or  lord  keeper, 
or  justice  or  justices,  or  baron  or  barons,  that  the  party  so  com- 
mitted is  detained  upon  a  legal  process,  order  or  warrant,  out  of 
some  court  that  hath  jurisdiction  of  criminal  matters,  or  by  some 
warrant  signed  and  sealed  with  the  hand  and  seal  of  any  of  the 
said  justices  or  barons,  or  some  justice  or  justices  of  the  peace,  for 


486  ON  CIVIL  LIBERTY 

such  matters  or  offences  for  the  which  by  the  law  the  prisoner  is 
not  bailable. 

IV.  Provided  always,  and  be  it  enacted,  That  if  any  person 
shall  have  wilfully  neglected,  by  the  space  of  two  whole  terms  after 
his  imprisonment,  to  pray  a  habeas  corpus  for  his  enlargement,  such 
person  so  wilfully  neglecting  shall  not  have  any  habeas  corpus  to 
be  granted  in  vacation  time,  in  pursuance  of  this  act. 

V.  And  be  it  further  enacted,  by  the  authority  aforesaid.  That 
if  any  officer  or  officers,  his  or  their  under-officer  or  under-officers, 
under-keeper  or  under-keepers,  or  deputy,  shall  neglect  or  refuse 
to  make  the  returns  aforesaid,  or  to  bring  the  body  or  bodies  of  the 
prisoner  or  prisoners  according  to  the  command  of  the  said  writ, 
within  the  respective  times  aforesaid,  or  upon  demand  made  by  the 
prisoner  or  person  in  his  behalf,  shall  refuse  to  deliver,  or  within 
the  space  of  six  hours  after  demand,  shall  not  deliver  to  the  person 
so  demanding,  a  true  copy  of  the  warrant  or  warrants  of  commit- 
ment and  detainer  of  such  prisoner,  which  he  and  they  are  hereby 
required  to  deliver  accordingly ;  all  and  every  the  head  gaolers 
and  keepers  of  such  person,  and  such  other  person  in  whose  custody 
the  prisoner  shall  be  detained,  shall  for  the  first  offence  forfeit  to 
the  prisoner  or  party  grieved  the  sum  of  ;^ioo;  (2)  and  for  the 
second  offence  the  sum  of  _;^2oo,  and  shall-  and  is  hereby  made  in- 
capable to  hold  or  execute  his  said  office ;  (3)  the  said  penalties 
to  be  recovered  by  the  prisoner  or  party  grieved,  his  executors  and 
administrators,  against  such  offender,  his  executors  or  adminis- 
trators, by  any  action  of  debt,  suit,  bill,  plaint  or  information,  in 
any  of  the  king's  courts  at  Westminster,  wherein  no  essoin,  protec- 
tion, privilege,  injunction,  wager  of  law,  or  stay  of  prosecution  by 
"Non  vult  ulterius  prosequi,"  or  otherwise,  shall  be  admitted  or 
allowed,  or  any  more  than  one  imparlance  ;  (4)  and  any  recovery 
or  judgment  at  the  suit  of  any  party  grieved,  shall  be  a  sufficient 
conviction  for  the  first  offence ;  and  any  after  recovery  or  judgment 
at  the  suit  of  a  party  grieved,  for  any  offence  after  the  first  judg- 
ment, shall  be  a  sufficient  conviction  to  bring  the  officers  or  person 
within  the  said  penalty  for  the  second  offence. 

VI.  And  for  the  prevention  of  unjust  vexation  by  reiterated 
commitments  for  the  same  offence ;  (2)  Be  it  enacted,  by  the  au 
thority  aforesaid.  That  no  person  or  persons,  which  shall  be  deliv- 
ered or  set  at  large  upon  any  habeas  corpus,  shall  at  any  time  here- 
after be  again  imprisoned  or  committed  for  the  same  offence,  by 


AND  SELF-GOVERNMENT.  487 

any  person  or  persons  whatsoever,  other  than  by  the  legal  order 
and  process  of  such  court  wherein  he  or  they  shall  be  bound  by 
recognizance  to  appear,  or  other  court  having  jurisdiction  of  the 
cause ;  (3)  and  if  any  other  person  or  persons  shall  knowingly, 
contrary  to  this  act,  recommit  or  imprison,  or  knowingly  procure  or 
cause  to  be  recommitted  or  imprisoned,  for  the  same  offence  or 
pretended  offence,  any  person  or  persons  delivered  or  set  at  large 
as  aforesaid,  or  be  knowingly  aiding  or  assisting  therein,  then  he 
or  they  shall  forfeit  to  the  prisoner  or  party  grieved,  the  sum 
of  £500 ;  any  colorable  pretence  or  variation  in  the  warrant  or 
warrants  of  commitment  notwithstanding,  to  be  recovered  as 
aforesaid. 

VII.  Provided  always,  and  be  it  further  enacted,  That  if  any 
person  or  persons  shall  be  committed  for  high  treason  or  felony, 
plainly  and  specially  expressed  in  the  warrant  of  commitment,  upon 
his  prayer  or  petition  in  open  court,  the  first  week  of  the  term,  or 
first  day  of  the  sessions  of  oyer  and  terminer  or  general  gaol  de- 
livery, to  be  brought  to  his  trial,  shall  not  be  indicted  some  time  in 
the  next  term,  sessions  of  oyer  and  terminer  or  general  gaol  de- 
livery, after  such  commitment ;  it  shall  and  may  be  lawful  to  and 
for  the  judges  of  the  court  of  king's  bench,  and  justices  of  oyer  and 
terminer  or  general  gaol  delivery,  and  they  are  hereby  required, 
upon  motion  to  them  made  in  open  court  the  last  day  of  the  term, 
sessions  or  gaol  delivery,  either  by  the  prisoner  or  any  one  in  his 
behalf,  to  set  at  liberty  the  prisoner  upon  bail,  unless  it  appear  to 
the  judges  and  justices,  upon  oath  made,  that  the  witnesses  for  the 
king  could  not  be  produced  the  same  term,  sessions  or  general  gaol 
delivery ;  (2)  and  if  any  person  or  persons  committed  as  aforesaid, 
upon  his  prayer  or  petition  in  open  court  the  first  week  of  the  term 
or  the  first  day  of  the  sessions  of  oyer  and  terminer  and  general 
gaol  delivery,  to  be  brought  to  his  trial,  shall  not  be  indicted  and 
tried  the  second  term,  sessions  of  oyer  and  terminer  or  general  gaol 
delivery,  after  his  commitment,  or  upon  his  trial  shall  be  acquitted, 
he  shall  be  discharged  from  his  imprisonment. 

VIII.  Provided  always.  That  nothing  in  this  act  shall  extend 
to  discharge  out  of  prison  any  person  charged  in  debt,  or  other 
action,  or  with  process  in  any  civil  cause,  but  that  after  he  shall  be 
discharged  of  his  imprisonment  for  such  his  criminal  offence,  he 
shall  be  kept  in  custody  according  to  the  law  for  such  other  suit. 

IX.  Provided  always,  and  be  it  further  enacted  by  the  authority 


488 


ON  CIVIL  LIBERTY 


aforesaid,  That  if  any  person  or  persons,  subjects  of  this  realm, 
shall  be  committed  to  any  prison,  or  in  custody  of  any  officer  or 
officers  whatsoever,  for  any  criminal  or  supposed  criminal  matter, 
that  the  said  person  shall  not  be  removed  from  the  said  prison  and 
custody,  into  the  custody  of  any  other  officer  or  officers;  (2)  unless 
it  be  by  habeas  corpus  or  some  other  legal  writ ;  or  where  the  pris- 
oner is  delivered  to  the  constable  or  other  inferior  officer,  to  carry 
such  prisoner  to  some  common  gaol ;  (3)  or  where  any  person  is 
sent  by  order  of  any  judge  of  assize,  or  justice  of  the  peace,  to  any 
common  workhouse  or  house  of  correction  \  (4)  or  where  the  pris- 
oner is  removed  from  one  place  or  prison  to  another  within  the 
same  county,  in  order  to  his  or  her  trial  or  discharge  in  due  course 
of  law;  (5)  or  in  case  of  sudden  fire  or  infection,  or  other  neces- 
sity ;  (6)  and  if  any  person  or  persons  shall,  after  such  commitment 
aforesaid,  make  out  and  sign  or  countersign  any  warrant  or  war- 
rants for  such  removal  aforesaid,  contrary  to  this  act ;  as  well  he 
that  makes  or  signs  or  countersigns  such  warrant  or  warrants,  as 
the  officer  or  officers  that  obey  or  execute  the  same,  shall  suffer  and 
incur  the  pains  and  forfeitures  in  this  act  before  mentioned,  both 
for  the  first  and  second  offence  respectively,  to  be  recovered  in 
manner  aforesaid  by  the  party  grieved. 

X.  Provided  also,  and  be  it  further  enacted  by  the  authority 
aforesaid.  That  it  shall  and  may  be  lawful  to  and  for  any  prisoner 
and  prisoners  as  aforesaid,  to  move  and  obtain  his  or  their  habeas 
corpus,  as  well  out  of  the  high  court  of  chancery  or  court  of  ex- 
chequer as  out  of  the  courts  of  king's  bench  or  common  pleas,  or 
either  of  them  ;  (2)  and  if  the  said  lord  chancellor  or  lord  keeper, 
or  any  judge  or  judges,  baron  or  barons,  for  the  time  being,  of  the 
degree  of  the  coif,  of  any  of  the  courts  aforesaid,  in  the  vacation 
time,  upon  view  of  the  copy  or  copies  of  the  warrant  or  warrants 
of  commitment  or  detainer,  upon  oath  made  that  such  copy  or 
copies  were  denied  as  aforesaid,  shall  deny  any  writ  of  habeas 
corpus,  by  this  act  required  to  be  granted,  being  moved  for  as 
aforesaid,  they  shall  severally  forfeit  to  the  prisoner  or  party 
grieved,  the  sum  of  ^^500,  to  be  recovered  in  manner  aforesaid. 

XL  And  be  it  declared  and  enacted  by  the  authority  aforesaid, 
That  an  habeas  corpus,  according  to  the  true  intent  and  meaning 
of  this  act,  may  be  directed  and  run  into  any  county  Palatine,  the 
Cinque  Port^  or  other  privileged  places  within  the  kingdom  of 
England,  dominion  of  Wales,  or  town  of  Berwick  upon  Tweed, 


AND  SELF-GOVERNMENT.  489 

and  the  islands  of  Jersey  or  Guernsey ;  any  law  or  usage  to  the 
contrary  notwithstanding. 

XII.  And  for  preventing  illegal  imprisonments  in  prisons  beyond 
the  seas  ;  (2)  Be  it  further  enacted  by  the  authority  aforesaid,  That 
no  subject  of  this  realm,  that  now  is  or  hereafter  shall  be  an  inhab- 
itant or  resiant  of  this  kingdom  of  England,  dominion  of  Wales,  or 
town  of  Berwick  upon  Tweed,  shall  or  may  be  sent  prisoner  into 
Scotland,  Ireland,  Jersey,  Guernsey,  Tangier,  or  into  parts,  garri- 
sons, islands,  or  places,  beyond  the  seas,  which  are  or  at  any  time 
hereafter  shall  be  within  or  without  the  dominions  of  his  majesty, 
his  heirs  or  successors ;  (3)  and  that  every  such  imprisonment  is 
hereby  enacted  and  adjudged  to  be  illegal ;  (4)  and  that  if  any  of 
the  said  subjects  now  is  or  hereafter  shall  be  so  imprisoned,  every 
such  person  and  persons  so  imprisoned,  shall  and  may  for  every 
such  imprisonment  maintain,  by  virtue  of  this  act,  an  action  or  ac- 
tions of  false  imprisonment,  in  any  of  his  majesty's  courts  of  record, 
against  the  person  or  persons  by  whom  he  or  she  shall  be  so  com- 
mitted, detained,  imprisoned,  sent  prisoner  or  transported,  contrary 
to  the  true  meaning  of  this  act,  and  against  all  or  any  person  or 
persons  that  shall  frame,  contrive,  write,  seal  or  countersign  any 
warrant  or  writing  for  such  commitment,  detainer,  imprisonment, 
or  transportation,  or  shall  be  advising,  aiding,  or  assisting  in  the 
same,  or  any  of  them;  (5)  and  the  plaintiff  in  every  such  action 
shall  have  judgment  to  recover  his  treble  costs,  besides  damages, 
which  damages  so  to  be  given  shall  not  be  less  than  ;;^5oo  ;  (6)  in 
which  action  no  delay,  stay  or  stop  of  proceeding  by  rule,  order  or 
command,  nor  no  injunction,  protection  or  privilege  whatsoever, 
nor  any  other  than  one  imparlance,  shall  be  allowed,  excepting 
such  rule  of  the  court  wherein  such  action  shall  depend,  made  in 
open  court,  as  shall  be  thought  in  justice  necessary  for  special 
cause  to  be  expressed  in  said  rule  ;  (7)  and  the  person  or  persons 
who  shall  knowingly  frame,  contrive,  write,  seal  or  countersign  any 
warrant  for  such  commitment,  detainer,  or  transportation,  or  shall 
so  commit,  detain,  imprison,  or  transport  any  person  or  persons, 
contrary  to  this  act,  or  be  any  ways  advising,  aiding  or  assisting 
therein,  being  lawfully  convicted  thereof,  shall  be  disabled  from 
thenceforth  to  bear  any  office  of  trust  or  profit  within  the  said 
realm  of  England,  dominion  of  Wales,  or  town  of  Berwick  upon 
Tweed,  or  any  of  the  islands,  territories  or  dominions  thereunto 
belonging  ;  (8)  and  shall  incur  and  sustain  the  pains,  penalties  and 


490  ON  CIVIL   LIBERTY 

forfeitures  limited,  ordained  and  provided  in  and  by  the  statute 
of  provision  and  praemunire,  made  in  the  sixteenth  year  of  king 
Richard  the  Second  ;  (9)  and  be  incapable  of  any  pardon  from  the 
king,  his  heirs  or  successors,  of  the  said  forfeitures,  losses  or 
disabilities,  or  any  of  them. 

XIII.  Provided  always,  That  nothing  in  this  act  shall  extend 
to  give  benefit  to  any  person  who  shall  by  contract  in  writing  agree 
with  any  merchant  or  owner  of  any  plantation,  or  other  person 
whatsoever,  to  be  transported  to  any  parts  beyond  the  seas,  and 
receive  earnest  upon  such  agreement,  although  that  afterwards 
such  person  shall  renounce  such  contract. 

XIV.  Provided  always,  and  be  it  enacted,  That  if  any  person 
or  persons  lawfully  convicted  of  any  felony,  shall  m  open  court 
pray  to  be  transported  beyond  the  seas,  and  the  court  shall  think 
fit  to  leave  him  or  them  in  prison  for  that  purpose,  such  person  or 
persons  may  be  transported  into  any  parts  beyond  the  seas  ;  this 
act,  or  anything  herein  contained,  to  the  contrary  notwithstanding. 

XV.  Provided  also,  and  be  it  enacted.  That  nothing  herein 
contained  shall  be  deemed,  construed  or  taken  to  extend  to  the  im- 
prisonment of  any  person  before  the  first  day  of  June,  one  thousand 
six  hundred  and  seventy-nine,  or  to  anything  advised,  procured  or 
otherwise  done  relating  to  such  imprisonment;  anything  herein 
contained  to  the  contrary  notwithstanding. 

XVI.  Provided  also,  That  if  any  person  or  persons  at  any  time 
resiant  in  this  realm,  shall  have  committed  any  capital  offence  in 
Scotland  or  in  Ireland,  or  in  any  of  the  islands  or  foreign  planta- 
tions of  the  king,  his  heirs  or  successors,  where  he  or  she  ought  to 
be  tried  for  such  offence,  such  person  or  persons  may  be  sent  to 
such  place,  there  to  receive  such  trial  in  such  manner  as  the  same 
might  have  been  used  before  the  making  of  this  act ;  anything 
herein  contained  to  the  contrary  notwithstanding. 

XVII.  Provided  also,  and  be  it  enacted.  That  no  person  or 
persons  shall  be  sued,  impleaded,  molested  or  troubled  for  any 
offence  against  this  act,  unless  the  party  offending  be  sued  or  im- 
pleaded for  the  same  within  two  years  at  the  most,  after  such  time 
wherein  the  offence  shall  be  committed,  in  case  the  party  grieved 
shall  not  be  then  in  prison  ;  and  if  he  shall  be  in  prison,  then 
within  the  space  of  two  years  after  the  decease  of  the  person  im- 
prisoned, or  his  or  her  delivery  out  of  prison,  which  shall  first 
happen. 


AND  SELF-  G  O  VERNMENT. 


491 


XVIII.  And  to  the  intent  no  person  may  avoid  his  trial  at  the 
assizes  or  general  gaol  delivery,  by  procuring  his  removal  before 
the  assizes,  at  such  time  as  he  cannot  be  brought  back  to  receive 
his  trial  there  ;  (2)  Be  it  enacted,  that  after  the  assizes  proclaimed 
for  that  county  where  the  prisoner  is  detained,  no  person  shall  be 
removed  from  the  common  gaol  upon  any  habeas  corpus  granted 
in  pursuance  of  this  act,  but  upon  any  such  habeas  corpus  shall  be 
brought  before  the  judge  of  assize  in  open  court,  who  is  tliereupon 
to  do  what  to  justice  shall  appertain. 

XIX.  Provided  nevertheless.  That  after  the  assizes  are  ended, 
any  person  or  persons  detained  may  have  his  or  her  habeas  corpus 
according  to  the  direction  and  intention  of  this  act. 

XX.  And  be  it  also  enacted  by  the  authority  aforesaid,  That  if 
any  information,  suit  or  action  shall  be  brought  or  exhibited  against 
any  person  or  persons  for  any  offence  committed  or  to  be  com- 
mitted against  the  form  of  this  law,  it  shall  be  lawful  for  such  de- 
fendants to  plead  the  general  issue,  that  they  are  not  guilty  or  that 
they  owe  nothing,  and  to  give  such  special  matter  in  evidence  to 
the  jury  that  shall  try  the  same,  which  matter  being  pleaded  had 
been  good  and  sufficient  matter  in  law  to  have  discharged  the  said 
defendant  or  defendants  against  the  said  information,  suit  or  action, 
and  the  same  matter  shall  be  then  as  available  to  him  or  them,  to 
all  intents  and  purposes,  as  if  he  or  they  had  sufficiently  pleaded, 
set  forth  or  alleged  the  same  matter  in  bar,  or  discharge  of  such 
information,  suit  or  action. 

XXI.  And  because  many  times  persons  charged  with  petty  trea- 
son or  felony,  or  accessories  thereunto,  are  committed  upon  sus- 
picion only,  whereupon  they  are  bailable  or  not,  according  as  the 
circumstances  making  out  that  suspicion  are  more  or  less  weighty, 
which  are  best  known  to  the  justices  of  the  peace  that  committed 
the  persons,  and  have  the  examination  before  them,  or  to  other 
justices  of  the  peace  in  the  county;  (2)  Be  it  therefore  enacted. 
That  where  any  person  shall  appear  to  be  committed  by  any  judge 
or  justice  of  the  peace,  and  charged  as  accessory  before  the  foct  to 
any  petty  treason  or  felony,  or  upon  suspicion  thereof,  or  with 
suspicion  of  petty  treason  or  felony,  which  petty  treason  or  felony 
shall  be  plainly  and  specially  expressed  in  the  warrant  of  commit- 
ment, that  such  person  shall  not  be  removed  or  bailed  by  virtue  of 
this  act,  or  in  any  other  manner  than  they  might  have  been  before 
the  making:  of  this  act. 


APPENDIX  VII. 

BILL    OF    RIGHTS,   PASSED    i   WILLIAM  AND    MARY,   SESS. 
2,    CH.  2,  1689. 

AN   ACT   FOR   DECLARING  THE   RIGHTS   AND   LIBERTIES   OF    THE   SUBJECT,   AND 
SETTLING   THE   SUCCESSION    OF   THE   CROWN. 

I  W.  &  M.,  1689. 

Whereas  the  lords  spiritual  and  temporal,  and  commons  assem- 
bled at  Westminster,  lawfully,  fully  and  freely  representing  all  the 
estates  of  the  people  of  this  realm,  did,  upon  the  thirteenth  day  of 
February,  in  the  year  of  our  Lord  one  thousand  six  hundred  and 
eighty-eight,  present  unto  their  majesties  then  called  and  known 
by  the  name  and  style  of  William  and  Mary,  prince  and  princess 
of  Orange,  being  present  in  their  proper  persons,  a  certain  declara- 
tion in  writing,  made  by  the  said  lords  and  commons,  in  the  words 
following,  viz : 

Whereas  the  Irfte  king  James  the  Second,  by  the  assistance  of 
divers  evil  counsellors,  judges  and  ministers  employed  by  him,  did 
endeavor  to  subvert  and  extirpate  the  protestant  religion,  and  the 
laws  and  liberties  of  this  kingdom — 

1.  By  assuming  and  exercising  a  power  of  dispensing  with  and 
suspending  the  laws,  and  the  execution  of  laws,  without  consent  of 
parliament. 

2.  By  committing  and  prosecuting  divers  worthy  prelates,  for 
humbly  petitioning  to  be  excused  from  concurring  to  the  said 
assumed  power. 

3.  By  issuing  and  causing  to  be  executed  a  commission  under 
the  great  seal  for  erecting  a  court  called  the  court  of  commissioners 
for  ecclesiastical  causes. 

4.  By  levying  money  for  and  to  the  use  of  the  crown,  by  pre- 
tence of  prerogative,  for  other  time  and  in  other  manner  than  the 
same  was  granted  by  parliament. 

5.  By  raising  and  l^eeping  a  standing  army  within  this  kingdom 
492 


ON  CIVIL  LIBERTY  AND  SELF-GOVERNMENT.     493 

in  time  of  peace,  without  consent  of  parliament,  and  quartering 
soldiers  contrary  to  law. 

6.  By  causing  several  good  subjects,  being  protestants,  to  be 
disarmed,  at  the  same  time  when  papists  were  both  armed  and 
employed,  contrary  to  law. 

7.  By  violating  the  freedom  of  election  of  members  to  serve  in 
parliament. 

8.  By  prosecutions  in  the  court  of  king's  bench,  for  matters  and 
causes  cognizable  only  in  parliament ;  and  by  divers  other  arbitrary 
and  illegal  courses. 

9.  And  whereas  of  late  years,  partial,  corrupt  and  unqualified 
persons  have  been  returned  and  served  on  juries  in  trials,  and  par- 
ticularly divers  jurors  in  trials  for  high  treason,  which  were  not 
freeholders. 

10.  And  excessive  bail  hath  been  required  of  persons  committed 
in  criminal  cases,  to  elude  the  benefit  of  the  laws  made  for  the 
liberty  of  the  subjects. 

11.  And  excessive  fines  have  been  imposed,  and  illegal  and  cruel 
punishments  inflicted. 

12.  And  several  grants  and  promises  made  of  fines  and  forfeit- 
ures, before  any  conviction  or  judgment  against  the  persons  upon 
whom  the  same  were  to  be  levied. 

All  which  are  utterly  and  directly  contrary  to  the  known  laws 
and  statutes,  and  freedom  of  this  realm. 

And  whereas  the  said  late  king  James  the  Second  having  abdi- 
cated the  government,  and  the  throne  being  thereby  vacant,  his 
highness  the  prince  of  Orange  (whom  it  hath  pleased  almighty 
God  to  make  the  glorious  instrument  of  delivering  the  kingdom 
from  popery  and  arbitrary  power)  did  (by  the  advice  of  the  lords 
spiritual  and  temporal,  and  divers  principal  persons  of  the  com- 
mons) cause  letters  to  be  written  to  the  lords  spiritual  and  tem- 
poral, being  protestants,  and  other  letters  to  the  several  counties, 
cities,  universities,  boroughs,  and  cinque-ports,  for  the  choosing  of 
such  persons  to  represent  them  as  were  of  right  to  be  sent  to  par- 
liament, to  meet  and  sit  at  Westminster,  upon  the  two  and  twen- 
tieth day  of  January,  in  this  year  one  thousand  six  hundred  eighty 
and  eight,  in  order  to  such  an  establishment,  as  that  their  religion, 
laws  and  liberties  might  not  again  be  in  danger  of  being  subverted  ; 
upon  which  letters,  elections  have  been  accordingly  made; 

And  thereupon  the  said  lords  spiritual  and  temporal,  and  com- 


494  ON  CIVIL   LIBERTY 

mons,  pursuant  to  their  respective  letters  and  elections,  being  now 
assembled  in  a  full  and  free  representative  of  this  nation,  taking 
into  their  most  serious  consideration  the  best  means  for  attaining 
the  ends  aforesaid,  do,  in  the  first  place  (as  their  ancestors  in  like 
case  have  usually  done),  for  the  vindicating  and  asserting  their 
ancient  rights  and  liberties,  declare — 

1.  That  the  pretended  power  of  suspending  of  laws,  or  the  ex- 
ecution of  laws,  by  regal  authority,  without  consent  of  parliament, 
is  illegal. 

2.  That  the  pretended  power  of  dispensing  with  laws,  or  the 
execution  of  laws,  by  regal  authority,  as  it  hath  been  assumed  and 
exercised  of  late,  is  illegal. 

3.  That  the  commission  for  erecting  the  late  court  of  commis- 
sioners for  ecclesiastical  causes,  and  all  other  commissions  and 
courts  of  like  nature,  are  illegal  and  pernicious. 

4.  That  levying  money  for  or  to  the  use  of  the  crown,  by  pre- 
tence of  prerogative,  without  grant  of  parliament,  for  longer  time 
or  in  other  manner  than  the  same  is  or  shall  be  granted,  is  illegal. 

5.  That  it  is  the  right  of  the  subjects  to  petition  the  king,  and 
all  commitments  and  prosecutions  for  such  petitioning  are  illegal. 

6.  That  the  raising  or  keeping  a  standing  army  within  the  king- 
dom in  time  of  peace,  unless  it  be  with  consent  of  parliament,  is 
against  law. 

7.  That  the  subjects  which  are  protestants  may  have  arms  for 
their  defence  suitable  to  their  conditions,  and  as  allowed  by  law. 

8.  That  election  of  members  of  parliament  ought  to  be  free. 

9.  That  the  freedom  of  speech,  and  debates  or  proceedings  in 
parliament,  ought  not  to  be  impeached  or  questioned  in  any  court 
or  place  out  of  parliament. 

10.  That  excessive  bail  ought  not  to  be  required,  nor  excessive 
fines  imposed  ;  nor  cruel  and  unusual  punishments  inflicted. 

11.  That  jurors  ought  to  be  duly  impanelled  and  returned,  and 
jurors  which  pass  upon  men  in  trials  for  high  treason,  ought  to  be 
freeholders. 

12.  That  all  grants  and  promises  of  fines  and  forfeitures  of  par- 
ticular persons  before  conviction,  are  illegal  and  void. 

13.  And  that  for  redress  of  all  grievances,  and  for  the  amending, 
strengthening  and  preserving  of  the  laws,  parliaments  ought  to  be 
held  frequently. 

And  they  do  claim,  demand  and  insist  upon  all  and  singular  the 


AXD  SELF-GO  VERXMENT.  495 

premises,  as  their  undoubted  rights  and  liberties ;  and  that  no 
declarations,  judgments,  doings  or  proceedings,  to  the  prejudice 
of  tlie  people  in  any  of  the  said  premises,  ought  in  any  wise  to 
be  drawn  hereafter  into  consequence  or  example. 

To  which  demand  of  their  rights  they  are  particularly  en- 
couraged by  the  declaration  of  his  highness  the  prince  of  Orange, 
as  being  the  only  means  for  obtaining  a  full  redress  and  remedy 
therein. 

Having  therefore  an  entire  confidence.  That  his  said  highness 
the  prince  of  Orange  will  perfect  the  deliverance  so  far  advanced 
by  him,  and  will  still  preserve  them  from  the  violation  of  their 
rights,  which  they  have  here  asserted,  and  from  all  other  attempts 
upon  their  religion,  rights  and  liberties  : 

II.  The  said  lords  spiritual  and  temporal,  and  commons,  assem- 
bled at  Westminster,  do  resolve,  That  William  and  Mary,  prince 
and  princess  of  Orange,  be,  and  be  declared,  king  and  queen  of 
England,  France  and  Ireland,  and  the  dominions  thereunto  belong- 
ing, to  hold  the  crown  and  royal  dignity  of  the  said  kingdoms  and 
dominions  to  them,  the  said  prince  and  princess,  during  their  lives, 
and  the  life  of  the  survivor  of  them ;  and  that  the  sole  and  full  ex- 
ercise of  the  regal  power  be  only  in,  and  executed  by,  the  said 
prince  of  Orange,  in  the  names  of  the  said  prince  and  princess, 
during  their  joint  lives ;  and  after  their  deceases,  the  said  crown 
and  royal  dignity  of  the  said  kingdoms  and  dominions  to  be  to  the 
heirs  of  the  body  of  the  said  princess  ;  and  for  default  of  such 
issue,  to  the  princess  Anne  of  Denmark,  and  the  heirs  of  her  body; 
and  for  default  of  such  issue,  to  the  heirs  of  the  body  of  the  said 
prince  of  Orange.  And  the  lords  spiritual  and  temporal,  and 
commons,  do  pray  the  said  prince  and  princess  to  accept  the  same 
accordingly. 

III.  And  that  the  oaths  hereafter  mentioned  be  taken  by  all 
persons  of  whom  the  oaths  of  allegiance  and  supremacy  might  be 
required  by  law,  instead  of  them;  and  that  the  said  oaths  of  alle- 
giance and  supremacy  be  abrogated. 

I,  A.  B.,  do  sincerely  promise  and  swear.  That  I  will  be  faithful 
and  bear  true  allegiance  to  their  majesties,  king  William  and  queen 
Mary : 

So  help  me  God. 

I,  A.  B.,  do  swear,  That  I  do  from  my  heart  abhor,  detest  and 


496 


ON  CIVIL  LIBERTY 


abjure,  as  impious  and  heretical,  that  damnable  doctrine  and  posi- 
tion, That  princes  excommunicated  or  deprived  by  the  pope,  or  any 
authority  of  the  see  of  Rome,  may  be  deposed  or  murdered  by 
their  subjects,  or  any  other  whatsoever.  And  I  do  declare.  That 
no  foreign  prince,  person,  prelate,  state  or  potentate  hath,  or  ought 
to  have,  any  jurisdiction,  power,  superiority,  pre-eminence  or  au- 
thority, ecclesiastical  or  spiritual,  within  this  realm  : 

So  help  me  God. 

IV.  Upon  which  their  said  majesties  did  accept  the  crown  and 
royal  dignity  of  the  kingdoms  of  England,  France  and  Ireland, 
and  the  dominions  thereunto  belonging,  according  to  the  resolu- 
tion and  desire  of  the  said  lords  and  commons  contained  in  the 
said  declaration. 

V.  And  thereupon  their  majesties  were  pleased.  That  the  said 
lords  spiritual  and  temporal,  and  commons,  being  the  two  houses 
of  parliament,  should  continue  to  sit,  and  with  their  majesties' 
royal  concurrence  make  effectual  provision  for  the  settlement  of  the 
religion,  laws  and  liberties  of  this  kingdom,  so  that  the  same  for 
the  future  might  not  be  in  danger  again  of  being  subverted ;  to 
which  the  said  lords  spiritual  and  temporal,  and  commons,  did 
agree  and  proceed  to  act  accordingly. 

VI.  Now  in  pursuance  of  the  premises,  the  said  lords  spiritual 
and  temporal,  and  commons,  in  parliament  assembled,  for  the  rati- 
fying, confirming  and  establishing  the  said  declaration,  and  the 
articles,  clauses,  matters  and  things  therein  contained,  by  the  force 
of  a  law  made  in  due  form  by  authority  of  parliament,  do  pray 
that  it  may  be  declared  and  enacted.  That  all  and  singular  the 
rights  and  liberties  asserted  and  claimed  in  the  said  declaration, 
are  the  true,  ancient  and  indubitable  rights  and  liberties  of  the 
people  of  this  kingdom,  and  so  shall  be  esteemed,  allowed,  ad- 
judged, deemed  and  taken  to  be,  and  that  all  and  every  the  par- 
ticulars aforesaid  shall  be  firmly  and  strictly  holden  and  observed, 
as  they  are  expressed  in  the  said  declaration  ;  and  all  officers  and 
ministers  whatsoever  shall  serve  their  majesties  and  their  successors 
according  to  the  same  in  all  times  to  come. 

Sections  VII.,  VIII.,  IX.,  X.,  are  irrelevant. 

XI.  All  which  their  majesties  are  contented  and  pleased  shall 
be  declared,  enacted  and  established  by  authority  of  this  present 
parliament,  and  shall  stand,  remain  and  be  the  law  of  this  realm 


AND  SELF-GOVERNMENT. 


497 


forever;  and  the  same  are  by  their  said  majesties,  by  and  with  the 
advice  and  consent  of  the  lords  spiritual  and  temporal,  and  com- 
mons, in  parliament  assembled,  and  by  the  authority  of  the  same, 
declared,  enacted  and  established  accordingly. 

XII.  And  be  it  further  declared  and  enacted  by  the  authority 
aforesaid.  That  from  and  after  this  present  session  of  parliament 
no  dispensation  by  non  obstante  of  or  to  any  statute,  or  any  part 
thereof,  shall  be  allowed,  but  that  the  same  shall  be  held  void  and 
of  no  effect,  except  a  dispensation  be  allowed  of  in  such  statute, 
and  except  in  such  cases  as  shall  be  specially  provided  for  by  one 
or  more  bill  or  bills  to  be  passed  during  this  present  session  of 
parliament. 

Section  XIII.  irrelevant. 


APPENDIX  VIII. 

A  DECLARATION   BY  THE   REPRESENTATIVES   OF  THE 
UNITED  STATES  OF  AMERICA   IN  CONGRESS   ASSEMBLED. 

When,  in  the  course  of  human  events,  it  becomes  necessary  for 
one  people  to  dissolve  the  political  bands  which  have  connected 
them  with  another,  and  to  assume,  among  the  powers  of  the  earth, 
the  separate  and  equal  station  to  which  the  laws  of  nature  and  of 
nature's  God  entitle  them,  a  accent  respect  to  the  opinions  of  man- 
kind requires  that  they  should  declare  the  causes  which  impel  them 
to  the  separation. 

We  hold  these  truths  to  be  self-evident,  that  all  men  are  created 
equal ;  that  they  are  endowed  by  their  Creator  with  certain  un- 
alienable rights ;  that  among  these,  are  life,  liberty,  and  the  pursuit 
of  happiness.  That,  to  secure  these  rights,  governments  are  insti- 
tuted among  men,  deriving  their  just  powers  from  the  consent  of 
the  governed  ;  that,  whenever  any  form  of  government  becomes 
destructive  of  these  ends,  it  is  the  right  of  the  people  to  alter  or 
to  abolish  it,  and  to  institute  a  new  government,  laying  its  founda- 
tion on  such  principles,  and  organizing  its  powers  in  such  form  as 
to  them  shall  seem  most  likely  to  effect  their  safety  and  happiness. 
Prudence,  indeed,  will  dictate  that  governments  long  establLshed 
should  not  be  changed  for  light  and  transient  causes ;  and,  accord- 
ingly, all  experience  hath  shown  that  mankind  are  more  disposed 
to  suffer,  while  evils  are  sufferable,  than  to  right  themselves  by 
abolishing  the  forms  to  which  they  are  accustomed.  But,  when  a 
long  train  of  abuses  and  usurpations,  pursuing  invariably  the  same 
object,  evinces  a  design  to  reduce  them  under  absolute  despotism, 
it  is  their  right,  it  is  their  duty,  to  throw  off  such  government,  and 
to  provide  new  guards  for  tlieir  future  security.  Such  has  been 
the  patient  sufferance  of  these  colonies,  and  such  is  now  the  neces- 
sity which  constrains  them  to  alter  their  former  systems  of  gov- 
ernment. The  history  of  the  present  king  of  Great  Britain  is  a 
history  of  repeated  injuries  and  usurpations,  all  having,  in  direct 
498 


ON  CIVIL  LIBERTY  AND  SELF-GOVERNMENT.     499 

object,  the  establishment  of  an  absolute  tyranny  over  these  States. 
To  prove  this,  let  facts  be  submitted  to  a  candid  world : 

He  has  refused  his  assent  to  laws  the  most  wholesome  and  neces- 
sary for  the  public  good. 

He  has  forbidden  his  governors  to  pass  laws  of  immediate  and 
pressing  importance,  unless  suspended  in  their  operation  till  his 
assent  should  be  obtained ;  and,  when  so  suspended,  he  has  utterly 
neglected  to  attend  to  them. 

He  has  refused  to  pass  other  laws  for  the  accommodation  of 
large  districts  of  people,  unless  those  people  would  relinquish  the 
right  of  representation  in  the  legislature  ;  a  right  inestimable  to 
them,  and  formidable  to  tyrants  only. 

He  has  called  together  legislative  bodies  at  places  unusual, 
uncomfortable,  and  distant  from  the  repository  of  their  public 
records,  for  the  sole  purpose  of  fatiguing  them  into  compliance 
with  his  measures. 

He  has  dissolved  representative  houses  repeatedly,  for  opposing, 
with  manly  firmness,  his  invasions  on  the  rights  of  the  people. 

He  has  refused,  for  a  long  time  after  such  dissolutions,  to  cause 
others  to  be  elected ;  whereby  the  legislative  powers,  incapable  of 
annihilation,  have  returned  to  the  people  at  large  for  their  exercise  ; 
the  state  remaining,  in  the  meantime,  exposed  to  all  the  danger  of 
invasion  from  without,  and  convulsions  within. 

He  has  endeavored  to  prevent  the  population  of  these  States  ; 
for  that  purpose,  obstructing  the  laws  for  the  naturalization  of 
foreigners ;  refusing  to  pass  others  to  encourage  their  migration 
hither,  and  raising  the  conditions  of  new  appropriations  of  lands. 

He  has  obstructed  the  administration  of  justice,  by  refusing  his 
assent  to  laws  for  establishing  judiciary  powers. 

He  has  made  judges  dependent  on  his  will  alone,  for  the  tenure 
of  their  offices,  and  the  amount  and  payment  of  their  salaries. 

He  has  erected  a  multitude  of  new  offices,  and  sent  hither  swarms 
of  officers  to  harass  our  people  and  eat  out  their  substance. 

He  has  kept  among  us,  in  times  of  peace,  standing  armies,  with- 
out the  consent  of  our  legislature. 

He  has  affected  to  render  the  military  independent  of,  and 
superior  to,  the  civil  power. 

He  has  combined,  with  others,  to  subject  tis  to  a  jurisdiction 
foreign  to  our  constitution,  and  unacknowledged  by  our  laws: 
giving  his  assent  to  their  acts  of  pretended  legislation  : 


i;oo  ON  CIVIL  LIBERTY 

For  quartering  large  bodies  of  armed  troops  among  us : 

For  protecting  them,  by  a  mock  trial,  from  punishment  for 
any  murders  which  they  should  commit  on  the  inhabitants  of  these 
States : 

For  cutting  off  our  trade  with  all  parts  of  the  world  : 

For  imposing  taxes  on  us  without  our  consent : 

For  depriving  us,  in  many  cases,  of  the  benefits  of  trial  by  jury  : 

For  transporting  us  beyond  the  seas  to  be  tried  for  pretended 
offences  : 

For  abolishing  the  free  system  of  English  laws  in  a  neighboring 
province,  establishing  therein  an  arbitrary  government,  and  en- 
larging its  boundaries,  so  as  to  render  it  at  once  an  example  and 
fit  instrument  for  introducing  the  same  absolute  rule  into  these 
colonies  : 

For  taking  away  our  charters,  abolishing  our  most  valuable  laws, 
and  altering,  fundamentally,  the  powers  of  our  governments : 

For  suspending  our  own  legislatures,  and  declaring  themselves 
invested  with  power  to  legislate  for  us  in  all  cases  whatsoever. 

He  has  abdicated  government  here,  by  declaring  us  out  of  his 
protection,  and  waging  war  against  us. 

He  has  plundered  our  seas,  ravaged  our  coasts,  burnt  our  towns, 
and  destroyed  the  lives  of  our  people. 

He  is,  at  this  time,  transporting  large  armies  of  foreign  merce- 
naries to  complete  the  works  of  death,  desolation,  and  tyranny, 
already  begun,  with  circumstances  of  cruelty  and  perfidy  scarcely 
paralleled  in  the  most  barbarous  ages,  and  totally  unworthy  the 
head  of  a  civilized  nation. 

He  has  constrained  our  fellow-citizens,  taken  captive  on  the 
high  seas,  to  bear  arms  against  their  country,  to  become  the  exe- 
cutioners of  their  friends  and  brethren,  or  to  fall  themselves  by 
their  hands. 

He  has  excited  domestic  insurrection  amongst  us,  and  has  en- 
deavored to  bring  on  the  inhabitants  of  our  frontiers,  the  merciless 
Indian  savages,  whose  known  rule  of  warfare  is  an  undistinguished 
destruction  of  all  ages,  sexes,  and  conditions. 

In  every  stage  of  these  oppressions,  we  have  petitioned  for  re- 
dress in  the  most  humble  terms ;  our  repeated  petitions  have  been 
answered  only  by  repeated  injury.  A  prince,  whose  character  is 
thus  marked  by  every  act  which  may  define  a  tyrant,  is  unfit  to  be 
the  ruler  of  a  free  people. 


AiVD  SELF-GO  VERXMENT. 


501 


Nor  have  we  been  wanting  in  attention  to  our  British  brethren. 
We  have  warned  them  from  time  to  time,  of  attempts  made  by 
their  legislature  to  extend  an  unwarrantable  jurisdiction  over  us. 
We  have  reminded  them  of  the  circumstances  of  our  emigration 
and  settlement  here.  We  have  appealed  to  their  native  justice 
and  magnanimity,  and  we  have  conjured  them,  by  the  ties  of  our 
common  kindred,  to  disavow  these  usurpations,  which  would  in- 
evitably interrupt  our  connections  and  correspondence.  They, 
too,  have  been  deaf  to  the  voice  of  justice  and  consanguinity.  We 
must,  therefore,  acquiesce  in  the  necessity  which  denounces  our 
separation,  and  hold  them,  as  we  hold  the  rest  of  mankind,  enemies 
in  war,  in  peace,  friends. 

We,  therefore,  the  representatives  of  the  United  States  of  Amer- 
ica, in  General  Congress  assembled,  appealing  to  the  Supreme 
Judge  of  the  world  for  the  rectitude  of  our  intentions,  do  in  the 
name,  and  by  the  authority  of  the  good  people  of  these  colonies, 
solemnly  publish  and  declare.  That  these  United  Colonies  are,  and 
of  right  ought  to  be,  free  and  independent  States ;  that  they  are 
absolved  from  all  allegiance  to  the  British  crown,  and  that  all 
political  connection  between  them  and  the  state  of  Great  Britain, 
is,  and  ought  to  be,  totally  dissolved ;  and  that,  as  free  and  inde- 
pendent States,  they  have  full  power  to  levy  war,  conclude  peace, 
contract  alliances,  establish  commerce,  and  to  do  all  other  acts  and 
things  which  independent  states  may  of  right  do.  And,  for  the 
support  of  this  declaration,  with  a  firm  reliance  on  the  protection 
of  Divine  Providence,  we  mutually  pledge  to  each  other  our  lives, 
our  fortunes,  and  our  sacred  honor. 

The  foregoing  declaration  was,  by  order  of  Congress,  engrossed 
and  signed  by  the  following  members. 

JOHN  HANCOCK. 

NEW    HAMPSHIRE.  RHODE   ISLAND. 

Josiah  Bartlett,  Stephen  Hopkins, 

William  Whipple,  William  Ellery. 

Matthew  Thornton. 

MASSACHUSETTS    BAY.  CONNECTICUT. 

Samuel  Adams,  ^og^''  Sherman, 

John  Adams,  Samuel  Huntington, 

Robert  Treat  Paine,  William  Williams, 
Elbridge  Gerry. 


Oliver  AVolcott. 


502 


ON  CIVIL  LIBERTY  AND  SELF-GOVERNMENT. 


NEW  YORK. 

William  Floyd, 
Philip  Livingston, 
Francis  Lewis, 
Lewis  Morris. 

NEW  JERSEY. 

Richard  Stockton, 
John  Witherspoon, 
Francis  Hopkinson, 
John  Hart, 
Abraham  Clark. 

PENNSYLVANIA. 

Robert  Morris, 
Benjamin  Rush, 
Benjamin  Franklin, 
John  Morton, 
George  Clymer, 
James  Smith, 
George  Taylor, 
James  Wilson, 
George  Ross. 

DELAWARE. 

Csesar  Rodney, 
George  Read, 
Thomas  M'Kean. 


MARYLAND. 

Samuel  Chase, 
William  Paca, 
Thomas  Stone, 
Charles  Carroll,  of  Carollton. 

VIRGINIA. 

George  Wythe, 
Richard  Henry  Lee, 
Thomas  Jefferson, 
Benjamin  Harrison, 
Thomas  Nelson,  Jun., 
Francis  Lightfoot  Lee, 
Carter  Braxton. 

NORTH   CAROLINA. 

William  Hooper, 
Joseph  Hewes, 
John  Penn. 

SOUTH    CAROLINA. 

Edward  Rutledge, 
Thomas  Hayward,  Jun., 
Thomas  Lynch,  Jun., 
Arthur  Middleton. 

GEORGIA. 

Button  Gwinnett, 
Lyman  Hall, 
George  Walton. 


Resolved,  That  copies  of  the  Declaration  be  sent  to  the  several 
assemblies,  conventions,  and  committees,  or  councils  of  safety ;  and 
to  the  several  commanding  officers  of  the  continental  troops ;  that 
it  be  proclaimed  in  each  of  the  United  States,  and  at  the  head  of 
the  army. 


APPENDIX  IX. 

ARTICLES   OF   CONFEDERATION  AND   PERPETUAL  UNION 
BETWEEN   THE   STATES. 

To  all  to  whom  these  presents  shall  cone,  we,  the  undersigned 
Delegates  of  the  States  affixed  to  our  ?iames,  send  greeting :  Whereas 
the  Delegates  of  the  United  States  of  America  in  congress  assem- 
bled, did,  on  the  15th  day  of  November,  in  the  year  of  our  Lord 
1777,  and  in  the  second  year  of  the  Independence  of  America, 
agree  to  certain  articles  of  confederation  and  perpetual  union  be- 
tween the  States  of  New  Hampshire,  Massachusetts  Bay,  Rhode 
Island  and  Providence  Plantations,  Connecticut,  New  York,  New 
Jersey,  Pennsylvania,  Delaware,  Maryland,  Virginia,  North  Caro- 
lina, South  Carolina,  and  Georgia,  in  the  words  following,  viz  : — 

Articles  of  Confederation  and  Perpetual  Union  between  the  States 
of  New  Hampshire,  Massachusetts  Bay,  Rhode  Island  aiid  Provi- 
dence Platitations,  Cotinecticut,  New  York,  New  Jersey,  Pennsyl- 
vania, Delaware,  Maryland,  Virginia,  North  Carolina,  South 
Carolitia,  a?id  Georgia. 

ARTICLE   I. 
The  style  of  this  confederacy  shall  be  "The  United  States  of 
America," 

ARTICLE   II. 

Each  state  retains  its  sovereignty,  freedom,  and  independence, 
and  every  power,  jurisdiction,  and  right,  which  is  not  by  this  con- 
federation expressly  delegated  to  the  United  States,  in  congress 
assembled. 

ARTICLE   III. 

The  said  states  hereby  severally  enter  into  a  firm  league  of 
friendship  with  each  other,  for  their  common  defence,  the  security 
of  their  liberties,  and  their  mutual  and  general  welfare ;  binding 
themselves   to   assist  each   other  against  all  force  offered  to,  or 

503 


504 


ON  CIVIL  LIBERTY 


attacks  made  upon  them,  or  any  of  them,  on  account  of  religion, 
sovereignty,  trade,  or  any  other  pretence  whatever. 

ARTICLE  IV. 

The  better  to  secure  and  perpetuate  mutual  friendship  and  inter- 
course among  the  people  of  the  different  states  in  this  Union,  the 
free  inhabitants  of  each  of  these  states  (paupers,  vagabonds,  and 
fugitives  from  justice  excepted)  shall  be  entitled  to  all  privileges 
and  immunities  of  free  citizens  in  the  several  states ;  and  the  people 
of  each  state  shall  have  free  ingress  and  regress  to  and  from  any 
other  state,  and  shall  enjoy  therein  all  the  privileges  of  trade  and 
commerce,  subject  to  the  same  duties,  impositions,  and  restrictions, 
as  the  inhabitants  thereof  respectively,  provided  that  such  restric- 
tion shall  not  extend  so  far  as  to  prevent  the  removal  of  property 
imported  into  any  state,  to  any  other  state  of  which  the  owner  is 
an  inhabitant ;  provided,  also,  that  no  imposition,  duties,  or  re- 
striction, shall  be  laid  by  any  state  on  the  property  of  the  United 
States,  or  either  of  them. 

If  any  person  guilty  of,  or  charged  with,  treason,  felony,  oi 
other  high  misdemeanor  in  any  state  shall  flee  from  justice,  and  be 
found  in  any  of  the  United  States,  he  shall,  upon  demand  of  the 
governor,  or  executive  power,  of  the  state  from  which  he  fled,  be 
delivered  up  and  removed  to  the  state  having  jurisdiction  of  his 
offence. 

Full  faith  and  credit  shall  be  given  in  each  of  these  states  to  the 
records,  acts,  and  judicial  proceedings,  of  the  courts  and  magis- 
trates of  every  other  state. 

ARTICLE   V. 

For  the  more  convenient  management  of  the  general  interests  of 
the  United  States,  delegates  shall  be  annually  appointed  in  such 
manner  as  the  legislature  of  each  state  shall  direct,  to  meet  in  con- 
gress on  the  first  Monday  in  November  in  every  year,  with  a  power 
reserved  to  each  state  to  recall  its  delegates,  or  any  of  them  at 
any  time  within  the  year,  and  to  send  others  in  their  stead  for  the 
remainder  of  the  year. 

No  state  shall  be  represented  in  congress  by  less  than  two,  nor 
by  more  than  seven  members  ;  and  no  person  shall  be  capable  of 
being  a  delegate  for  more  than  three  years  in  any  term  of  six 
years  j  nor  shall  any  person,  being  a  delegate,  be  capable  of  hold- 


AND  SELF-GOVERNMENT. 


505 


ing  any  office  under  the  United  States,  for  which  he  or  another 
for  his  benefit,  receives  any  salary,  fees,  or  emolument  of  any  kind. 

Each  state  shall  maintain  its  own  delegates  in  any  meeting  of 
the  states,  and  while  they  act  as  members  of  the  committee  of  the 
states. 

In  determining  questions  in  the  United  States,  in  congress 
assembled,  each  state  shall  have  one  vote. 

Freedom  of  speech  or  debate  in  congress  shall  not  be  impeached 
or  questioned  in  any  court  or  place  out  of  congress,  and  the  mem- 
bers of  congfess  shall  be  protected  in  their  persons  from  arrests 
and  imprisonments  during  the  time  of  their  going  to  and  from,  and 
attendance  on  congress,  except  for  treason,  felony,  or  breach  of 
the  peace. 

ARTICLE   VI. 

No  state,  without  the  consent  of  the  United  States  in  congress 
assembled,  shall  send  any  embassy  to,  or  receive  any  embassy 
from,  or  enter  into  any  conference,  agreement,  alliance,  or  treaty, 
with  any  king,  prince,  or  state  ;  nor  shall  any  person  holding  any 
office  of  profit  or  trust  under  the  United  States,  or  any  of  them, 
accept  of  any  present,  emolument,  office,  or  title,  of  any  kind  what- 
ever, from  any  king,  prince,  or  foreign  state ;  nor  shall  the  United 
States  in  congress  assembled,  or  any  of  them,  grant  any  title  of 
nobility. 

No  two  or  more  states  shall  enter  into  any  treaty,  confederation, 
or  alliance,  whatever  between  them,  without  the  consent  of  the 
United  States  in  congress  assembled,  specifying  accurately  the 
purposes  for  which  the  same  is  to  be  entered  into,  and  how  long  it 
shall  continue. 

No  state  shall  lay  any  imposts,  or  duties,  which  may  interfere 
with  any  stipulations  in  treaties  entered  into  by  the  United  States 
in  congress  assembled,  with  any  king,  prince,  or  state,  in  pur- 
suance of  any  treaties  already  proposed  by  congress  to  the  courts 
of  France  or  Spain. 

No  vessels  of  war  shall  be  kept  up  in  time  of  peace  by  any  state, 
except  such  number  only  as  shall  be  deemed  necessary  by  the 
United  States  in  congress  assembled  for  the  defence  of  such  state, 
or  its  trade ;  nor  shall  any  body  of  forces  be  kept  up  by  any  state 
in  time  of  peace,  except  such  number  only  as  in  the  judgment  of 
the  United  States  in  congress  assembled  shall  be  deemed  requisite 


5o6  ON   CIVIL   LIBERTY 

to  garrison  the  forts  necessary  for  the  defence  of  such  state ;  but 
every  state  shall  always  keep  up  a  well-regulated  and  disciplined 
militia,  sufficiently  armed  and  accoutred,  and  shall  provide,  and 
have  constantly  ready  for  use  in  public  stores,  a  due  number  of 
field-pieces  and  tents,  and  a  proper  quantity  of  arms,  ammunition, 
and  camp  equipage. 

No  state  shall  engage  in  any  war  without  the  consent  of  the 
United  States  in  congress  assembled,  unless  such  state  be  actually 
invaded  by  enemies,  or  shall  have  received  certain  advice  of  a 
resolution  being  formed  by  some  nation  of  Indians  to  invade  such 
state,  and  the  danger  is  so  imminent  as  not  to  admit  of  a  delay  till 
the  United  States  in  congress  assembled  can  be  consulted ;  nor 
shall  any  state  grant  commissions  to  any  ships  or  vessels  of  war, 
nor  letters  of  marque  or  reprisal,  except  it  be  after  a  declaration 
of  war  by  the  United  States  in  congress  assembled,  and  then  only 
against  the  kingdom,  or  state,  and  the  subjects  thereof,  against 
which  war  has  been  so  declared,  and  under  such  regulations  as 
shall  be  established  by  the  United  States  in  congress  assembled, 
unless  such  state  be  infested  by  pirates,  in  which  case  vessels  of  war 
may  be  fitted  out  for  that  occasion,  and  kept  so  long  as  the  danger 
shall  continue,  or  until  the  United  States  in  congress  assembled 
shall  determine  otherwise. 

ARTICLE    VII. 

When  land  forces  are  raised  by  any  state  for  the  common  de- 
fence, all  officers  of,  or  under  the  rank  of  colonel  shall  be  appointed 
by  the  legislature  of  each  state  respectively,  by  whom  such  forces 
shall  be  raised,  or  in  such  manner  as  such  state  shall  direct,  and 
all  vacancies  shall  be  filled  up  by  the  state  which  first  made  the 
appointment. 

ARTICLE    VIII. 

All  charges  of  war,  and  all  other  expenses  that  shall  be  incurred 
for  the  common  defence  or  general  welfare,  and  allowed  by  the 
United  States  in  congress  assembled,  shall  be  defrayed  out  of  a 
common  treasury,  which  shall  be  supplied  by  the  several  states,  in 
proportion  to  the  value  of  all  land  within  each  state  granted  to,  or 
surveyed  for  any  person,  as  such  land,  and  the  buildings  and  im- 
provements thereon,  shall  be  estimated  according  to  such  mode  as 
the  United  States  in  congress  assembled  shall  from  time  to  time 


AND  SELF-GOVERNMENT. 


507 


direct  and  appoint.  The  taxes  for  paying  that  proportion  shall 
be  laid  and  levied  by  the  authority  and  direction  of  the  legislatures 
of  the  several  states  within  the  time  agreed  upon  by  the  United 
States  in  congress  assembled. 

ARTICLE    IX. 

The  United  States  in  congress  assembled  shall  have  the  sole  and 
exclusive  right  and  power  of  determining  on  peace  and  war,  ex- 
cept in  the  cases  mentioned  in  the  6th  article ;  of  sending  and  re- 
ceiving ambassadors;  entering  into  treaties  and  alliances,  provided 
that  no  treaty  of  commerce  shall  be  made  whereby  the  legislative 
power  of  the  respective  states  shall  be  restrained  from  imposing 
such  imposts  and  duties  on  foreigners  as  their  own  people  are  sub- 
jected to,  or  from  prohibiting  the  exportation  or  importation  of 
any  species  of  goods  or  commodities  whatsoever ;  of  establishing 
rules  for  deciding  in  all  cases  what  captures  on  land  or  water  shall 
be  legal,  and  in  what  manner  prizes  taken  by  land  or  naval  forces 
in  the  service  of  the  United  States  shall  be  divided  or  appro- 
priated ;  of  granting  letters  of  marque  and  reprisal  in  times  of 
peace ;  appointing  courts  for  the  trial  of  piracies  and  felonies  com- 
mitted on  the  high  seas,  and  establishing  courts  for  receiving  and 
determining  finally  appeals  in  all  cases  of  captures,  provided  that 
no  member  of  congress  shall  be  appointed  a  judge  of  any  of  the 
said  courts. 

The  United  States  in  congress  assembled  shall  also  be  the  last 
resort  on  appeal  in  all  disputes  and  differences  now  subsisting,  or 
that  hereafter  may  arise,  between  two  or  more  states,  concerning 
boundary,  jurisdiction,  or  any  ot'ier  cause  whatever — which  au- 
thority shall  always  be  exercised  in  the  manner  following :  When- 
ever the  legislative  or  executive  authority,  or  lawful  agent,  of  any 
state  in  controversy  with  another  shall  present  a  petition  to  con- 
gress, stating  the  matter  in  question  and  praying  for  a  hearing, 
notice  thereof  shall  be  given,  by  order  of  congress,  to  the  legisla- 
tive or  executive  authority  of  the  other  state  in  controversy,  and 
a  day  assigned  for  the  appearance  of  the  parties  by  their  lawful 
agents,  who  shall  then  be  directed  to  appoint,  by  joint  consent, 
commissioners  or  judges  to  constitute  a  court  for  hearing  and  de- 
termining the  matter  in  question  ;  but,  if  they  cannot  agree,  con- 
gress shall  name  three  persons  out  of  each  of  the  United  States, 
and   from  the   list  of  such  persons  each  party  shall  alternately 


5o8  ON  CIVIL  LIBERTY 

strike  out  one  (the  petitioners  beginning,)  until  the  number  shall 
be  reduced  to  thirteen ;  and  from  that  number  not  less  than  seven, 
nor  more  than  nine  names,  as  congress  shall  direct,  shall  in  the 
presence  of  congress  be  drawn  out  by  lot,  and  the  persons  whose 
names  shall  be  so  drawn,  or  any  five  of  them,  shall  be  commis- 
sioners or  judges,  to  hear  and  finally  determine  the  controversy,  so 
always  as  a  major  part  of  the  judges  who  shall  hear  the  cause  shall 
agree  in  the  determination ;  and  if  either  party  shall  neglect  to 
attend  at  the  day  appointed,  without  showing  reasons  which  con- 
gress shall  judge  sufficient,  or  being  present  shall  refuse  to  strike, 
the  congress  shall  proceed  to  nominate  three  persons  out  of  each 
state,  and  the  secretary  of  congress  shall  strike  in  behalf  of  such 
party  absent  or  refusing ;  and  the  judgment  and  the  sentence  of 
the  court,  to  be  appointed  in  the  manner  before  prescribed,  shall  be 
final  and  conclusive  ;  and  if  any  of  the  parties  shall  refuse  to  sub- 
mit to  the  authority  of  such  court,  or  to  appear  or  defend  their 
claim  or  cause,  the  court  shall,  nevertheless,  proceed  to  pronounce 
sentence  or  judgment,  which  shall  in  like  manner  be  final  and  de- 
cisive— the  judgment,  or  sentence,  and  other  proceedings  being  in 
either  case  transmitted  to  congress,  and  lodged  among  the  acts  of 
congress  for  the  security  of  the  parties  concerned ;  provided  that 
every  commissioner,  before  he  sits  in  judgment,  shall  take  an  oath 
to  be  administered  by  one  of  the  judges  of  the  supreme  or  supe- 
rior court  of  the  state  where  the  cause  shall  be  tried,  "well  and 
truly  to  hear  and  determine  the  matter  in  question  according  to 
the  best  of  his  judgment,  without  favor,  affection,  or  hope  of 
reward;"  provided,  also,  that  no  state  shall  be  deprived  of  terri- 
tory for  the  benefit  of  the  United  States. 

All  controversies  concerning  the  private  right  of  soil  claimed 
under  different  grants  of  two  or  more  states,  whose  jurisdictions, 
as  they  may  respect  such  lands,  and  the  states  which  passed  such 
grants  are  adjusted,  the  said  grants  or  either  of  them  being  at  the 
same  time  claimed  to  have  originated  antecedent  to  such  settlement 
of  jurisdiction,  shall,  on  the  petition  of  either  party  to  the  Congress 
of  the  United  States,  be  finally  determined  as  near  as  may  be  in 
the  same  manner  as  is  before  prescribed  for  deciding  disputes 
respecting  territorial  jurisdiction  between  different  states. 

The  United  States  in  congress  assembled  shall  also  have  the 
sole  and  exclusive  right  and  power  of  regulating  the  alloy  and  value 
of  coin  struck  by  their  own  authority,  or  by  that  of  the  respective 


A  ND  SELF-  G  O  J  ERXMEXT. 


509 


states — fixing  the  standard  of  weights  and  measures  throughout 
the  United  States — regulating  the  trade  and  managing  all  affairs 
with  the  Indians,  not  members  of  any  of  the  states,  provided  that 
the  legislative  right  of  any  state  within  its  own  limits  be  not  in- 
fringed or  violated — establishing  or  regulating  post-offices  from  one 
state  to  another,  throughout  all  the  United  States,  and  exacting 
such  postage  on  the  papers  passing  through  the  same  as  may  be 
requisite  to  defray  the  expenses  of  the  said  office — appointing  all 
officers  of  the  land  forces,  in  the  service  of  the  United  States,  ex- 
cepting regimental  officers — appointing  all  the  officers  of  the  naval 
forces,  and  commissioning  all  officers  whatever  in  the  service  of  the 
United  States — making  rules  for  the  government  and  regulation  of 
the  said  land  and  naval  forces,  and  directing  their  operations. 

The  United  States,  in  congress  assembled,  shall  have  authority 
to  appoint  a  committee,  to  sit  in  the  recess  of  congress,  to  be  de- 
nominated "A  Committee  of  the  States,"  and  to  consist  of  one 
delegate  from  each  state ;  and  to  appoint  such  other  committees 
and  civil  officers  as  may  be  necessary  for  managing  the  general 
affairs  of  the  United  States  under  their  direction — to  appoint  one 
of  their  number  to  preside,  provided  that  no  person  be  allowed  to 
serve  in  the  office  of  president  more  than  one  year  in  any  term  of 
three  years  :  to  ascertain  the  necessary  sums  of  money  to  be  raised 
for  the  service  of  the  United  States,  and  to  appropriate  and  apply 
the  same  for  defraying  the  public  expenses — to  borrow  money,  or 
emit  bills  on  the  credit  of  the  United  States,  transmitting  every 
half  year  to  the  respective  states  an  account  of  the  sums  of  money 
so  borrowed  or  emitted — to  build  and  equip  a  navy — to  agree  upon 
the  number  of  land  forces,  and  to  make  requisitions  from  each  state 
for  its  quota,  in  proportion  to  the  number  of  white  inhabitants  in 
such  state ;  which  requisition  shall  be  binding,  and  thereupon  the 
legislature  of  each  state  shall  appoint  the  regimental  officers,  raise 
the  men,  and  clothe,  arm,  and  equip  them  in  a  soldier-like  man- 
ner, at  the  expense  of  the  United  States ;  and  the  officers  and  men 
so  clothed,  armed,  and  equipped  shall  march  to  the  place  appointed, 
and  within  the  time  agreed  on  by  the  United  States  in  congress 
assembled  :  But  if  the  United  States,  in  congress  assembled,  shall, 
on  consideration  of  circumstances,  judge  proper  that  any  state 
should  not  raise  men,  or  should  raise  a  smaller  number  than  its 
quota,  and  that  any  other  state  should  raise  a  greater  number  of 
men  than  the  quota  thereof,  such  extra  number  shall  be  raised, 


5IO  ON  CIVIL  LIBERTY 

officered,  clothed,  armed,  and  equipped  in  the  same  manner  as  the 
quota  of  such  state,  unless  the  legislature  of  such  state  shall  judge 
that  such  extra  number  cannot  be  safely  spared  out  of  the  same,  in 
which  case  they  shall  raise,  officer,  clothe,  arm,  and  equip  as  many 
of  such  extra  number  as  they  judge  can  be  safely  spared.  And  the 
officers  and  men  so  clothed,  armed,  and  equipped,  shall  march  to 
the  place  appointed,  and  within  the  time  agreed  on  by  the  United 
States  in  congress  assembled. 

The  United  States  in  congress  assembled,  shall  never  engage  in  a 
war,  nor  grant  letters  of  marque  and  reprisal  in  time  of  peace,  nor 
enter  into  any  treaties  or  alliances,  nor  coin  money,  nor  regulate  the 
value  thereof,  nor  ascertain  the  sums  and  expenses  necessary  for  the 
defence  and  welfare  of  the  United  States,  or  any  of  them,  nor  emit 
bills,  nor  borrow  money  on  the  credit  of  the  United  States,  nor  ap- 
propriate money,  nor  agree  upon  the  number  of  vessels  of  war,  to  be 
built  or  purchased,  or  the  number  of  land  or  sea  forces  to  be  raised, 
nor  appoint  a  commander-in-chief  of  the  army  or  navy,  unless  nine 
states  assent  to  the  same  ;  nor  shall  a  question  on  any  other  point, 
except  for  adjourning  from  day  to  day,  be  determined,  unless  by  the 
votes  of  a  majority  of  the  United  States  in  congress  assembled. 

The  congress  of  the  United  States  shall  have  power  to  adjourn 
to  any  time  within  the  year,  and  to  any  place  within  the  United 
States,  so  that  no  period  of  adjournment  be  for  a  longer  duration 
than  the  space  of  six  months,  and  shall  publish  the  journal  of  their 
proceedings  monthly,  except  such  parts  thereof  relating  to  treaties, 
alliances,  or  military  operations,  as  in  their  judgment  require  se- 
crecy ;  and  the  yeas  and  nays  of  the  delegates  of  each  state  on  any 
question  shall  be  entered  on  the  journal,  when  it  is  desired  by  any 
delegate ;  and  the  delegates  of  a  state,  or  any  of  them,  at  his  or 
their  request,  shall  be  furnished  with  a  transcript  of  the  said  jour- 
nal, except  such  parts  as  are  above  excepted,  to  lay  before  the 
legislatures  of  the  several  states. 


ARTICLE  X. 

The  committee  of  the  states,  or  any  nine  of  them,  shall  be  au- 
thorized to  execute,  in  the  recess  of  congress,  such  of  the  powers 
of  congress  as  the  United  States  in  congress  assembled,  by  the 
consent  of  nine  states,  shall,  from  time  to  time,  think  expedient  to 
vest  them  with ;  provided  that  no  power  be  delegated  to  the  said 


A  ND   SELF-  G  O  VERNMENT. 


511 


committee,  for  the  exercise  of  which,  by  the  articles  of  confedera- 
tion, the  voice  of  nine  states,  in  the  congress  of  the  United  States 
assembled,  is  requisite. 

ARTICLE    XI. 

Canada  acceding  to  this  confederation,  and  joining  in  the  meas- 
ures of  the  United  States,  shall  be  admitted  into,  and  entitled  to 
all  the  advantages  of  this  union  :  but  no  other  colony  shall  be  ad- 
mitted into  the  same,  unless  such  admission  be  agreed  to  by  nine 
states. 

ARTICLE   XIL 

All  bills  of  credit  emitted,  moneys  borrowed,  and  debts  con- 
tracted by,  or  under  the  authority  of  congress,  before  the  assem- 
bling of  the  United  States,  in  pursuance  of  the  present  confedera- 
tion, shall  be  deemed  and  considered  as  a  charge  against  the  United 
States,  for  payment  and  satisfaction  whereof  the  said  United  States, 
and  the  public  faith  are  hereby  solemnly  pledged. 

ARTICLE    XIII. 

Every  state  shall  abide  by  the  determinations  of  the  United 
States  in  congress  assembled,  on  all  questions  which  by  this  con- 
federation is  submitted  to  them.  And  the  articles  of  this  confed- 
eration shall  be  inviolably  observed  by  every  state,  and  the  union 
shall  be  perpetual ;  nor  shall  any  alteration  at  any  time  hereafter 
be  made  in  any  of  them ;  unless  such  alteration  be  agreed  to  in  a 
congress  of  the  United  States,  and  be  afterwards  confirmed  by  the 
legislature  of  every  state. 

And  whereas,  it  hath  pleased  the  Great  Governor  of  the  World 
to  incline  the  hearts  of  the  legislatures  we  respectively  represent 
in  congress,  to  approve  of,  and  to  authorize  us  to  ratify  the  said 
articles  of  confederation  and  perpetual  union:  Know  Ye,  that  we 
the  undersigned  delegates,  by  virtue  of  the  power  and  authority 
to  us  given  for  that  purpose,  do  by  these  presents,  in  the  name  and 
in  behalf  of  our  respective  constituents,  fully  and  entirely  ratify 
and  confirm  each  and  every  of  the  said  articles  of  confederation 
^  and  perpetual  union,  and  all  and  singular  the  matters  and  things 
therein  contained  :  And  we  do  further  solemnly  plight  and  engage 
the  faith  of  our  respective  constituents,  that  they  shall  abide  by  the 


512  ON  CIVIL  LIBERTY. 

determinations  of  the  United  States  in  congress  assembled,  on  all 
questions,  Avhich  by  the  said  confederation  are  submitted  to  them. 
And  that  the  articles  thereof  shall  be  inviolably  observed  by  the 
states  we  respectively  represent,  and  that  the  union  shall  be  per- 
petual. In  witness  whereof  we^  have  hereunto  set  our  hands  in 
congress.  Done  at  Philadelphia  in  the  state  of  Pennsylvania,  the 
ninth  day  of  July  in  the  year  of  our  Lord  1778,  and  in  the  third 
year  of  the  Independence  of  America. 

On  the  part  and  behalf  of  the  state  of  New  Hampshire : 

Josiah  Bartlett,  John  Wentworth,  Jun., 

Aug.  8,  1778. 

On  the  part  and  behalf  of  the  state  of  Massachusetts  Bay : 

John  Hancock,  Francis  Dana, 

Samuel  Adams,  James  Lovell, 

Elbridge  Gerry,  Samuel  Holten. 

On  the  part  and  behalf  of  the  state  of  Rhode  Island  and  Provi- 
dence Plantations : 
William  Ellery,  John  Collins. 

Henry  Marchant, 

On  the  part  and  behalf  of  the  state  of  Connecticut : 

Roger  Sherman,  Titus  Hosmer, 

Samuel  Huntington,  Andrew  Adams. 

Oliver  Wolcott, 

On  the  part  and  behalf  of  the  state  of  New  York 

Jas.  Duane,  William  Duer, 

Fras.  Lewis,  Gouvr.  Morris. 

On  the  part  and  behalf  of  the  state  of  New  Jersey,  November 
26,  1778: 

Jno.  Witherspoon,  Nathl.  Scudder. 

On  the  part  and  behalf  of  the  state  of  Pennsylvania : 

Robt.  Morris,  William  Clingan, 

Daniel  Roberdeau,  Joseph  Reed, 

Jona.  Bayard  Smith,  2 2d  July,  1778. 


AND  SELF-GOVERNMENT. 

On  the  part  and  behalf  of  the  state  of  Delaware : 

Tho.  M'Kean,  Feb.  12,  1779.       Nicholas  Van  Dyke. 
John  Dickinson,  May  5,  1779. 

On  the  part  and  behalf  of  the  state  of  Maryland : 

John  Hanson,  Daniel  Carroll, 

March  i,  1781.  March  i,  1781. 

On  the  part  and  behalf  of  the  state  of  Virginia : 

Richard  Henry  Lee,  Jno.  Harvie, 

John  Banister,  Francis  Lightfoot  Lee. 

Thomas  Adams, 

On  the  part  and  behalf  of  the  state  of  North  Carolina : 

John  Penn,  Corns.  Harnett, 

July  21,  1778.  Jno.  Williams. 

On  the  part  and  behalf  of  the  state  of  South  Carolina; 

Henry  Laurens,  Richd.  Hutson, 

William  Henry  Drayton,  Thos.  Hayward,  Jun. 

Jno.  Mathews, 

On  the  part  and  behalf  of  the  state  of  Georgia : 

Jno.  Walton,  Edwd.  Telfair, 

24th  July,  1778.  Edwd.  Langworthy. 


513 


.13 


APPENDIX  X. 

CONSTITUTION  OF  THE  UNITED  STATES  OF  AMERICA. 

We,  the  people  of  the  United  States,  in  order  to  form  a  more 
perfect  Union,  establish  justice,  insure  domestic  tranquillity,  pro- 
vide for  the  common  defence,  promote  the  general  welfare,  and 
secure  the  blessings  of  liberty  to  ourselves  and  our  posterity,  do 
ordain  and  establish  this  Constitution  for  the  United  States  of 
America. 

ARTICLE   I. 

Section  i.  All  legislative  powers  herein  granted  shall  be  vested 
in  a  congress  of  the  United  States,  which  shall  consist  of  a  senate 
and  house  of  representatives. 

Section  2.  The  house  of  representatives  shall  be  composed  of 
members  chosen  every  second  year  by  the  people  of  the  several 
states,  and  the  electors  in  each  state  shall  have  the  qualifications 
requisite  for  electors  of  the  most  numerous  branch  of  the  state 
legislature. 

No  person  shall  be  a  representative  who  shall  not  have  attained 
to  the  age  of  twenty-five  years,  and  been  seven  years  a  citizen  of 
the  United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant 
of  that  state  in  which  he  shall  be  chosen. 

Representatives  and  direct  taxes  shall  be  apportioned  among 
the  several  states  which  may  be  included  wi.thin  this  Union,  accord- 
ing to  their  respective  numbers,  which  shall  be  determined  by  adding 
to  the  whole  number  of  free  persons,  including  those  bound  to  ser- 
vice for  a  term  of  years,  and  excluding  Indians  not  taxed,  three- 
fifths  of  all  other  persons.  The  actual  enumeration  shall  be  made 
within  three  years  after  the  first  meeting  of  the  congress  of  the 
United  States,  and  within  every  subsequent  term  of  ten  years,  in 
such  manner  as  they  shall  by  law  direct.  The  number  of  repre- 
sentatives shall  not  exceed  one  for  every  thirty  thousand,  but  each 
state  shall  have  at  least  one  representative ;  and  until  such  enumer- 


O.y  CIVIL  LIBERTY  AND  SELF-GOVERNMENT.     515 

ation  shall  be  made,  the  state  of  New  Hampshire  shall  be  entitled 
to  choose  three,  Massachusetts  eight,  Rhode  Island  and  Providence 
Plantations  one,  Connecticut  five.  New  York  six.  New  Jersey  four, 
Pennsylvania  eight,  Delaware  one,  Maryland  six,  Virginia  ten, 
North  Carolina  five.  South  Carolina  five,  and  Georgia  three. 

When  vacancies  happen  in  the  representation  from  any  state,  the 
executive  authority  thereof  shall  issue  writs  of  election  to  fill  such 
vacancies. 

The  house  of  representatives  shall  choose  their  speaker,  and  of  her 
officers;  and  shall  have  the  sole  power  of  impeachment. 

Section  3.  The  senate  of  the  United  States  shall  be  composed 
of  two  senators  from  each  state,  chosen  by  the  legislature  thereof 
for  six  years ;  and  each  senator  shall  have  one  vote. 

Immediately  after  they  shall  be  assembled  in  consequence  of  the 
first  election,  they  shall  be  divided  as  equally  as  may  be  into  three 
classes.  The  seats  of  the  senators  of  the  first  class  shall  be  vacated 
at  the  expiration  of  the  second  year,  of  the  second  class  at  the  ex- 
piration of  the  fourth  year,  and  of  the  third  class  at  the  expiration 
of  the  sixth  year,  so  that  one-third  may  be  chosen  every  second 
year  ;  and  if  vacancies  happen  by  resignation,  or  otherwise,  during 
the  recess  of  the  legislature  of  .any  state,  the  executive  thereof  may 
make  temporary  appointments  until  the  next  meeting  of  the  legis- 
lature, which  shall  then  fill  such  vacancies. 

No  person  shall  be  a  senator  who  shall  not  have  attained  to  the 
age  of  thirty  years,  and  been  nine  years  a  citizen  of  the  United 
States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of  that 
State  for  which  he  shall  be  chosen. 

The  Vice-President  of  the  United  States  shall  be  president  of 
the  senate,  but  shall  have  no  vote,  unless  they  be  equally  divided. 

The  senate  shall  choose  their  other  officers,  and  also  a  president 
pro  tempore,  in  the  absence  of  the  vice-president,  or  when  he  shall 
exercise  the  office  of  President  of  the  United  States. 

The  senate  shall  have  the  sole  power  to  try  all  impeachments. 
When  sitting  for  that  purpose,  they  shall  be  on  oath  or  affirmation. 
When  the  President  of  the  United  States  is  tried,  the  chief  justice 
shall  preside;  and  no  person  shall  be  convicted  without  the  concur- 
rence of  two-thirds  of  the  members  present. 

Judgment  in  case  of  impeachment  shall  not  extend  further  than 
to  removal  from  office,  and  disqualification  to  hold  and  enjoy  any 
office  of  honor,  trust  or  profit,  under  the  United  States  ;  but  the 


5i6  ON  CIVIL   LIBERTY 

party  convicted  shall  nevertheless  be  liable  and  subject  to  indict- 
ment, trial,  judgment,  and  punishment  according  to  law. 

Section  4.  The  times,  places,  and  manner  of  holding  elections 
for  senators  and  representatives  shall  be  prescribed  in  each  state  by 
the  legislature  thereof;  but  the  congress  may  at  anytime  bylaw 
make  or  alter  such  regulations,  except  as  to  the  places  of  choosing 
senators. 

The  congress  shall  assemble  at  least  once  in  every  year,  and  such 
meeting  shall  be  on  the  first  Monday  in  December,  unless  they  shall 
by  law  appoint  a  different  day. 

Section  5.  Each  house  shall  be  the  judge  of  the  elections,  re- 
turns and  qualifications  of  its  own  members,  and  a  majority  of  each 
shall  constitute  a  quorum  to  do  business;  but  a  smaller  number 
may  adjourn  from  day  to  day,  and  may  be  authorized  to  compel 
the  attendance  of  absent  members,  in  such  manner  and  under  such 
penalties  as  each  house  may  provide. 

Each  house  may  determine  the  rules  of  its  proceedings,  punish 
its  members  for  disorderly  behavior,  and,  with  the  concurrence  of 
two-thirds,  expel  a  member. 

Each  house  shall  keep  a  journal  of  its  proceedings,  and  from 
time  to  time  publish  the  same,  excepting  such  parts  as  may  in  their 
judgment  require  secrecy  ;  and  the  yeas  and  nays  of  the  members 
of  either  house,  on  any  question,  shall,  at  the  desire  of  one-fifth  of 
those  present,  be  entered  on  the  journal. 

Neither  house,  during  the  session  of  congress,  shall,  without 
the  consent  of  the  other,  adjourn  for  more  than  three  days,  nor 
to  any  other  place  than  that  in  which  the  two  houses  shall  be 
sitting. 

Section  6.  The  senators  and  representatives  shall  receive  a  com- 
pensation for  their  services,  to  be  ascertained  by  law,  and  paid  out 
of  the  treasury  of  the  United  States.  They  shall  in  all  cases,  except 
treason,  felony,  and  breach  of  the  peace,  be  privileged  from  arrest 
during  their  attendance  at  the  session  of  their  respective  houses, 
and  in  going  to  and  returning  from  the  same  ;  and  for  any  speech 
or  debate  in  either  house,  they  shall  not  be  questioned  in  any  other 
place. 

No  senator  or  representative  shall,  during  the  time  for  which  he 
was  elected,  be  appointed  to  any  civil  office  under  the  authority 
of  the  United  States,  which  shall  have  been  created,  or  the 
emoluments  whereof  shall  have  been  increased  during  such  time ; 


A  ND  SELF-  G  O  VERNMENT. 


517 


and  no  person  holding  any  office  under  the  United  States  shall  be 
a  member  of  either  house  during  his  continuance  in  office. 

Section  7.  All  bills  for  raising  revenue  shall  originate  in  the 
house  of  representatives ;  but  the  senate  may  propose  or  concur 
with  amendments  as  on  other  bills. 

Every  bill  which  shall  have  passed  the  house'of  representatives 
and  the  senate,  shall,  before  it  become  a  law,  be  presented  to  the 
President  of  the  United  States.  If  he  approve,  he  shall  sign  it; 
but  if  not,  he  shall  return  it,  with  his  objections,  to  that  house  in 
which  it  shall  have  originated,  who  shall  enter  the  objections  at 
large  on  their  journal,  and  proceed  to  reconsider  it.  If,  after  such 
reconsideration,  two-thirds  of  that  house  shall  agree  to  pass  the 
bill,  it  shall  be  sent,  together  with  the  objections,  to  the  other 
house,  by  which  it  shall  likewise  be  reconsidered,  and  if  approved 
by  two-thirds  of  that  house,  it  shall  become  a  law.  But  in  all 
such  cases  the  votes  of  both  houses  shall  be  determined  by  yeas 
and  nays,  and  the  names  of  the  persons  voting  for  and  against  the 
bill  shall  be  entered  on  the  journal  of  each  house  respectively. 
If  any  bill  shall  not  be  returned  by  the  president  within  ten  days 
(Sundays  excepted)  after  it  shall  have  been  presented  to  him,  the 
same  shall  be  a  law,  in  like  manner  as  if  he  had  signed  it,  unless 
the  congress  by  their  adjournment  prevent  its  return  ;  in  which 
case,  it  shall  not  be  a  law.  Every  order,  resolution,  or  vote,  to 
which  the  concurrence  of  the  senate  and  house  of  representatives 
may  be  necessary  (except  on  a  question  of  adjournment),  shall  be 
presented  to  the  President  of  the  United  States  ;  and  before  the 
same  shall  take  effect,  shall  be  approved  by  him ;  or,  being  disap- 
proved by  him,  shall  be  repassed  by  two-thirds  of  the  senate  and 
house  of  representatives,  according  to  the  rules  and  limitations 
prescribed  in  the  case  of  a  bill. 

Section  8.  The  congress  shall  have  power 

To  lay  and  collect  taxes,  duties,  imposts,  and  excises ;  to  pay  the 
debts  and  provide  for  the  common  defence  and  general  welfare  of 
the  United  States  j  but  all  duties,  imposts,  and  excises  shall  be 
uniform  throughout  the  United  States  : 

To  borrow  money  on  the  credit  of  the  United  States: 

To  regulate  commerce  with  foreign  nations,  and  among  the 
several  states,  and  with  the  Indian  tribes  : 

To  establish  an  uniform  rule  of  naturalization,  and  uniform  laws 
on  the  subject  of  bankruptcies  throughout  the  United  States: 


5i8 


OiV  CIVIL  LIBERTY 


To  coin  money,  regulate  the  value  thereof,  and  of  foreign  coinj 
and  fix  the  standard  of  weights  and  measures : 

To  provide  for  the  punishment  of  counterfeiting  the  securities 
and  current  coin  of  the  United  States : 

To  establish  post-offices  and  post-roads  : 

To  promote  the  progress  of  science  and  useful  arts,  by  securing 
for  limited  tunes  to  authors  and  inventors  the  exclusive  right  to 
their  respective  writings  and  discoveries: 

To  constitute  tribunals  inferior  to  the  supreme  court: 

To  define  and  punish  piracies  and  felonies  committed  on  the  high 
seas,  and  offences  against  the  law  of  nations: 

To  declare  war,  grant  letters  of  marque  and  reprisal,  and  make 
rules  concerning  captures  on  land  and  water : 

To  raise  and  support  armies ;  but  no  appropriation  of  money  to 
that  use  shall  be  for  a  longer  term  than  two  years : 

To  provide  and  maintain  a  navy : 

To  make  rules  for  the  government  and  regulation  of  the  land 
and  naval  forces : 

To  provide  for  calling  forth  the  militia  to  execute  the  laws  of 
the  Union,  suppress  insurrections,  and  repel  invasions : 

To  provide  for  organizing,  arming,  and  disciplining  the  militia, 
and  for  governing  such  part  of  them  as  may  be  employed  in  the 
service  of  the  United  States,  reserving  to  the  states  respectively 
the  appointment  of  the  officers,  and  the  authority  of  training  the 
militia  according  to  the  discipline  prescribed  by  congress : 

To  exercise  exclusive  legislation,  in  all  cases  whatsoever,  over 
such  district  (not  exceeding  ten  miles  square)  as  may,  by  ces- 
sion of  particular  states  and  the  acceptance  of  congress,  become 
the  seat  of  the  government  of  the  United  States,  and  to  exercise 
like  authority  over  all  places  purchased  by  the  consent  of  the 
legislature  of  the  state  in  which  the  same  shall  be,  for  the  erec- 
tion of  forts,  magazines,  arsenals,  dock-yards,  and  other  needful 
buildings.    And 

To  make  all  laws  which  shall  be  necessary  and  proper  for  carry- 
ing into  execution  the  foregoing  powers,  and  all  other  powers 
vested  by  this  constitution  in  the  government  of  the  United  States, 
or  in  any  department  or  officer  thereof. 

Sejtion  9.  The  migration  or  imjjortation  of  such  persons  as  any 
of  the  states  now  existing  shall  think  proper  to  admit,  shall  not  be 
prohibited  by  the  congress  prior  to  the  year  one  thousand  eight 


AND  SELF-GOVERNMENT. 


519 


hundred  and  eight ;  but  a  tax  or  duty  may  be  imposed  on  such 
importation,  not  exceeding  ten  dollars  for  each  person. 

The  privilege  of  the  writ  oi  habeas  corpus  shall  not  be  suspended, 
unless  when  in  cases  of  rebellion  or  invasion  the  public  safety  may 
require  it. 

No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed. 

No  capitation  or  other  direct  tax  shall  be  laid,  unless  in  pro- 
portion to  the  census  or  enumeration  hereinbefore  directed  to  be 
taken. 

No  tax  or  duty  shall  be  laid  on  articles  exported  from  any 
state. 

No  preference  shall  be  given,  by  any  regulation  of  commerce  or 
revenue,  to  the  ports  of  one  state  over  those  of  another ;  nor  shall 
vessels  bound  to  or  from  one  state  be  obliged  to  enter,  clear,  or  pay 
duties  in  another. 

No  money  shall  be  drawn  from  the  treasury,  but  in  consequence 
of  appropriations  made  by  law ;  and  a  regular  statement  and  ac- 
count of  the  receipts  and  expenditures  of  all  public  money  shall  be 
published  from  time  to  time. 

No  title  of  nobility  shall  be  granted  by  the  United  States ;  and 
no  person  holding  any  office  of  profit  or  trust  under  them  shall, 
without  the  consent  of  the  congress,  accept  of  any  present,  emolu- 
ment, office,  or  title  of  any  kind  whatever,  from  any  king,  prince, 
or  foreign  state. 

Section  10.  No  state  shall  enter  into  any  treaty,  alliance  or 
confederation  ;  grant  letters  of  marque  and  reprisal ;  coin  money; 
emit  bills  of  credit ;  make  anything  but  gold  and  silver  coin  a 
tender  in  payment  of  debts;  pass  any  bill  of  attainder,  ex  post 
facto  law,  or  law  impairing  the  obligation  of  contracts,  or  grant 
any  title  of  nobility. 

No  state  shall,  without  the  consent  of  the  congress,  lay  any 
imposts  or  duties  on  imports  or  exports,  except  what  may  be 
absolutely  necessary  for  executing  its  inspection  laws ;  and  the  net 
produce  of  all  duties  and  imposts,  laid  by  any  state  on  imports  or 
exports,  shall  be  for  the  use  of  the  treasury  of  the  United  States ; 
and  all  such  laws  shall  be  subject  to  the  revision  and  control  of  the 
congress. 

No  state  shall,  without  the  consent  of  congress,  lay  any  duty  of 
tonnage,  keep  troops  or  ships  of  war  in  time  of  peace,  enter  into 
any  agreement  or  compact  with  another  state,  or  with  a  foreign 


520 


ON  CIVIL  LIBERTY 


power,  or  engage  in  war,  unless  actually  invaded,  or  in  such  immi- 
nent danger  as  will  not  admit  of  delay. 

ARTICLE   II. 

Section  i.  The  executive  power  shall  be  vested  in  a  president 
of  the  United  States  of  America.  He  shall  hold  his  office  during 
the  term  of  four  years,  and,  together  with  the  vice-president,  chosen 
for  the  same  term,  be  elected  as  follows  : — 

Each  state  shall  appoint,  in  such  manner  as  the  legislature 
thereof  may  direct,  a  number  of  electors,  equal  to  the  whole 
number  of  senators  and  representatives  to  which  the  state  may 
be  entitled  in  the  congress;  but  no  senator  or  representative,  or 
person  holding  an  office  of  trust  or  profit  under  the  United  States, 
shall  be  appointed  an  elector. 

['  The  electors  shall  meet  in  their  respective  states,  and  vote  by 
ballot  for  two  persons,  of  whom  one  at  least  shall  not  be  an  in- 
habitant of  the  same  state  with  themselves.  And  they  shall  make 
a  list  of  all  the  persons  voted  for,  and  of  the  number  of  votes  for 
each ;  which  list  they  shall  sign  and  certify,  and  transmit  sealed  to 
the  seat  of  the  government  of  the  United  States,  directed  to  the 
president  of  the  senate.  The  president  of  the  senate  shall,  in  the 
presence  of  the  senate  and  house  of  representatives,  open  all  the 
certificates,  and  the  votes  shall  then  be  counted.  The  person 
having  the  greatest  number  of  votes  shall  be  the  president,  if  such 
number  be  a  majority  of  the  whole  number  of  electors  appointed ; 
and  if  there  be  more  than  one  who  have  such  majority,  and  have 
an  equal  number  of  votes,  then  the  house  of  representatives  shall 
immediately  choose  by  ballot  one  of  them  for  president;  and  if  no 
person  have  a  majority,  then  from  the  five  highest  on  the  list  the 
said  house  shall  in  like  manner  choose  the  president.  But  in 
choosing  the  president,  the  votes  shall  be  taken  by  states,  the 
representation  from  each  state  having  one  vote.  A  quorum  for  this 
purpose  shall  consist  of  a  member  or  members  from  two-thirds 
of  the  states,  and  a  majority  of  all  the  states  shall  be  necessary 
to  a  choice.  In  every  case,  after  the  choice  of  the  president,  the 
person  having  the  greatest  number  of  votes  of  the  electors  shall  be 


«  This  clause  within  brackets  has  been  superseded  and  annulled  by  the  I2tb 
amendment,  on  pages  527-28. 


AND  SELF- G O  VERNMENT. 


521 


the  vice-president.  But  if  there  should  remain  two  or  more  who 
have  equal  votes,  the  senate  shall  choose  from  them  by  ballot  the 
vice-president.] 

The  congress  may  determine  the  time  of  choosing  the  electors, 
and  the  day  on  which  they  shall  give  their  votes ;  which  day  shall 
be  the  same  throughout  the  United  States. 

No  person  except  a  natural  born  citizen,  or  a  citizen  of  the 
United  States  at  the  time  of  the  adoption  of  this  constitution,  shall 
be  eligible  to  the  office  of  president;  neither  shall  any  person  be 
eligible  to  that  office  who  shall  not  have  attained  to  the  age  of 
thirty-five  years,  and  been  fourteen  years  a  resident  within  the 
United  States. 

In  case  of  the  removal  of  the  president  from  office,  or  of  his 
death,  resignation,  or  inability  to  discharge  the  powers  and  duties 
of  the  said  office,  the  same  shall  devolve  on  the  vice-president,  and 
the  congress  may  by  law  provide  for  the  case  of  removal,  death, 
resignation,  or  inability,  both  of  the  president  and  vice-president, 
declaring  what  officer  shall  then  act  as  president ;  and  such  officer 
shall  act  accordingly,  until  the  disability  be  removed,  or  a  presi- 
dent shall  be  elected. 

The  president  shall,  at  stated  times,  receive  for  his  services  a 
compensation,  which  shall  neither  be  increased  nor  diminished 
during  the  period  for  which  he  shall  have  been  elected ;  and  he 
shall  not  receive  within  that  period  any  other  emolument  from  the 
United  States,  or  any  of  them. 

Before  he  enter  on  the  execution  of  his  office,  he  shall  take  the 
following  oath  or  affirmation  : 

"I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  execute 
the  office  of  President  of  the  United  States,  and  will,  to  the  best 
of  my  ability,  preserve,  protect,  and  defend  the  Constitution  of  the 
United  States." 

Section  2.  The  president  shall  be  commander-in-chief  of  the 
army  and  navy  of  the  United  States,  and  of  the  militia  of  the 
several  states,  when  called  into  the  actual  service  of  the  United 
States;  he  may  require  the  opinion,  in  writing,  of  the  principal 
officer  in  each  of  the  executive  departments,  upon  any  subject 
relating  to  the  duties  of  their  respective  offices ;  and  he  shall  have 
power  to  grant  reprieves  and  pardons  for  offences  against  the 
United  States,  except  in  cases  of  impeachment. 


522  ON  CIVIL  LIBERTY 

He  shall  have  power,  by  and  with  the  advice  and  consent  of  the 
senate,  to  make  treaties,  provided  two-thirds  of  the  senators 
present  concur;  and  he  shall  nominate,  and  by  and  with  the  advice 
and  consent  of  the  senate,  shall  appoint  ambassadors,  other  public 
ministers  and  consuls,  judges  of  the  suprerne  court,  and  all  other 
officers  of  the  United  States  whose  appointments  are  not  herein 
otherwise  provided  for,  and  which  shall  be  established  by  law ;  but 
the  congress  may  by  law  vest  the  appointment  of  such  inferior  offi- 
cers, as  they  think  proper,  in  the  president  alone,  in  the  courts  of 
law,  or  in  the  heads  of  departments. 

The  president  shall  have  power  to  fill  up  all  vacancies  that  may 
happen  during  the  recess  of  the  senate,  by  granting  commissions 
which  shall  expire  at  the  end  of  their  next  session. 

Section  3.  He  shall  from  time  to  time  give  to  the  congress 
information  of  the  state  of  the  Union,  and  recommend  to  their 
consideration  such  measures  as  he  shall  judge  necessary  and  expe- 
dient ;  he  may,  on  extraordinary  occasions,  convene  both  houses, 
or  either  of  them  ;  and  in  case  of  disagreement  between  them,  with 
respect  to  the  time  of  adjournment,  he  may  adjourn  them  to  such 
time  as  he  shall  think  proper ;  he  shall  receive  ambassadors  and 
other  public  ministers;  he  shall  take  care  that  the  laws  be  faith- 
fully executed,  and  shall  commission  all  the  officers  of  the  United 
States. 

Section  4.  The  president,  vice-president,  and  all  civil  officers 
of  the  United  States  shall  be  removed  from  office  on  impeachment 
for,  and  conviction  of,  treason,  bribery,  or  other  high  crimes  and 
misdemeanors. 

ARTICLE    III. 

Section  i.  The  judicial  power  of  the  United  States  shall  be 
vested  in  one  supreme  court,,  and  in  such  inferior  courts  as  the 
congress  may  from  time  to  time  ordain  and  establish.  The  judges, 
both  of  the  supreme  and  inferior  courts,  shall  hold  their  offices 
during  good  behavior,  and  shall,  at  stated  times,  receive  for  their 
services  a  compensation,  which  shall  not  be  diminished  during  their 
continuance  in  office. 

Section  2.  The  judicial  power  shall  extend  to  all  cases,  in  law 
and  equity,  arising  under  this  constitution,  the  laws  of  the  United 
States,  and  treaties  made,  or  which  shall  be  made,  under  their  au- 
thority; to  all  cases  affecting  ambassadors,  other  public  ministers, 


AND  SELF-GOVERNMENT.  523 

and  consuls;  to  all  cases  of  admiralty  and  maritime  jurisdiction; 
to  controversies,  to  which  the  United  States  shall  be  a  party ;  tc 
controversies  between  two  or  more  states ;  between  a  state  and 
citizens  of  another  state;  between  citizens  of  different  states;  be- 
tween citizens  of  the  same  state  claiming  lands  under  grants  of 
different  states,  and  between  a  state,  or  the  citizens  thereof,  and 
foreign  states,  citizens  or  subjects. 

In  all  cases  affecting  ambassadors,  other  public  ministers  and 
consuls,  and  those  in  which  a  state  shall  be  party,  the  supreme 
court  shall  have  original  jurisdiction.  In  all  the  other  cases  before 
mentioned,  the  supreme  court  shall  have  appellate  jurisdiction, 
both  as  to  law  and  fact,  with  such  exceptions,  and  under  such 
regulations  as  the  congress  shall  make. 

The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be 
by  jury;  and  such  trial  shall  be  held  in  the  state  where  the  said 
crimes  shall  have  been  committed  ;  but  when  not  committed  within 
any  state,  the  trial  shall  be  at  such  place  or  places  as  the  congress 
may  by  law  have  directed. 

Section  3.  Treason  against  the  United  States  shall  consist  only 
in  levying  war  against  them,  or  in  adhering  to  their  enemies,  giving 
them  aid  and  comfort.  No  person  shall  be  convicted  of  treason 
unless  on  the  testimony  of  two  witnesses  to  the  same  overt  act,  or 
on  confession  in  open  court. 

The  congress  shall  have  power  to  declare  the  punishment  of 
treason ;  but  no  attainder  of  treason  shall  work  corruption  of 
blood,  or  forfeiture  except  during  the  life  of  the  person  attainted. 

ARTICLE    IV. 

Section  i.  Full  faith  and  credit  shall  be  given  in  each  state  to 
the  public  acts,  records,  and  judicial  proceedings  of  every  other 
state.  And  the  congress  may  by  general  laws  prescribe  the  man- 
ner in  which  such  acts,  records,  and  proceedings  shall  be  proved, 
and  the  effect  thereof. 

Section  2.  The  citizens  of  each  state  shall  be  entitled  to  all 
privileges  and  immunities  of  citizens  in  the  several  states. 

A  person  charged  in  any  state  with  treason,  felony,  or  other 
crime,  who  shall  flee  from  justice,  and  be  found  in  another  state, 
shall,  on  demand  of  the  executive  authority  of  the  state  from 
which  he  fled,  be  delivered  up,  to  be  removed  to  the  state  having 
jurisdiction  of  the  crime.  , 


524 


ON  CIVIL  LIBERTY 


No  person  held  to  service  or  labor  in  one  state,  under  the  laws 
thereof,  escaping  into  another,  shall,  in  consequence  of  any  law  or 
regulation  therein,  be  discharged  from  such  service  or  labor,  but 
shall  be  delivered  up  on  claim  of  the  party  to  whom  such  service 
or  labor  may  be  due. 

Section  3.  New  states  may  be  admitted  by  the  congress  into 
this  Union  ;  but  no  new  state  shall  be  formed  or  erected  within 
the  jurisdiction  of  any  other  state ;  nor  any  state  be  formed  by 
the  junction  of  two  or  more  states,  or  parts  of  states,  without  the 
consent  of  the  legislatures  of  the  states  concerned,  as  well  as  of 
the  congress. 

The  congress  shall  have  power  to  dispose  of  and  make  all  need- 
ful rules  and  regulations  respecting  the  territory  or  other  property 
belonging  to  the  United  States;  and  nothing  in  this  constitution 
shall  be  so  construed  as  to  prejudice  any  claims  of  the  United 
States,  or  of  any  particular  state. 

Section  4.  The  United  States  shall  guarantee  to  every  state  in 
this  Union  a  republican  form  of  government,  and  shall  protect  each 
of  them  against  invasion  ;  and  on  application  of  the  legislature,  or 
of  the  executive  (when  the  legislature  cannot  be  convened),  against 
domestic  violence. 

ARTICLE  V. 

The  congress,  whenever  two-thirds  of  both  houses  shall  deem 
it  necessary,  shall  propose  amendments  to  this  constitution  ;  or, 
on  the  application  of  the  legislatures  of  two- thirds  of  the  several 
states,  shall  call  a  convention  for  proposing  amendments,  which,  in 
either  case,  shall  be  valid  to  all  intents  and  purposes,  as  part  of 
this  constitution,  when  ratified  by  the  legislatures  of  three-fourths 
of  the  several  states,  or  by  conventions  in  three-fourths  thereof,  as 
the  one  or  the  other  mode  of  ratification  may  be  proposed  by  the 
congress ;  provided  that  no  amendment  which  may  be  made  prior 
to  the  year  one  thousand  eight  hundred  and  eight,  shall  in  any 
manner  affect  the  first  and  fourth  clauses  in  the  ninth  section  of 
the  first  article ;  and  that  no  state,  without  its  consent,  shall  be 
deprived  of  its  equal  suffrage  in  the  senate. 

ARTICLE   VI. 
All  debts  contracted  and  engagements  entered  into,  before  the 
adoption  of  this  constitution,  shall  be  as  valid  against  the  United 
States,  under  this  constitution,  as  under  the  Confederation. 


A  ND  SELF-  C  O  VERNMENT. 


525 


This  constitution,  and  the  laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof;  and  all  treaties  made,  or  which 
shall  be  made,  under  the  authority  of  the  United  States,  shall  be 
the  supreme  law  of  the  land ;  and  the  judges  in  every  state  shall 
be  bound  thereby,  anything  in  the  constitution  or  laws  of  any  state 
to  the  contrary  notwithstanding. 

The  senators  and  representatives  before  mentioned,  and  the  mem- 
bers of  the  several  state  legislatures,  and  all  executive  and  judicial 
officers,  both  of  the  United  States  and  of  the  several  states,  shall 
be  bound  by  oath  or  affirmation  to  support  this  constitution  ;  but 
no  religious  test  shall  ever  be  required  as  a  qualification  to  any 
office  or  public  trust  under  the  United  States. 

ARTICLE   VII. 
The  ratification  of  the  conventions  of  nine  states  shall  be  suffi- 
cient for  the  establishment  of  this  constitution  between  the  states 
so  ratifying  the  same. 

Done  in  convention,  by  the  unanimous  consent  of  the  states 
present,  the  seventeenth  day  of  September,  in  the  year  of  our  Lord 
one  thousand  seven  hundred  and  eighty-seven,  and  of  the  inde- 
pendence of  the  United  States  of  America  the  twelfth.  In  witness 
whereof,  we  have  hereunto  subscribed  our  names. 

GEO.  WASHINGTON, 

President  and  deputy  fro7n  Virginia. 

[Here  follow  the  names  of  the  signers  from  the  different  states. 
See  next  page  for  additions  and  amendments.] 


526  OiY  CIVIL  LIBERTY 


Articles  in  addition  to,  mid  amendment  of,  the  Constitution  of  tht 
United  States  of  America,  p7-oposed  by  Congress,  and  ratified  by 
the  Legislatures  of  the  several  States ,  pursuant  to  the  fifth  article 
of  the  original  Constitution. 

ARTICLE  I. 
Congress  shall  make  no  law  respecting  an  establishment  of  re- 
ligion, or  prohibiting  the  free  exercise  thereof;  or  abridging  the 
freedom  of  speech,  or  of  the  press  ;  or  the  right  of  the  people 
peaceably  to  assemble,  and  to  petition  the  government  for  a  redress 
of  grievances. 

ARTICLE   II. 
A  well  regulated  militia,  being  necessary  to  the  security  of  a  free 
state;  the  right  of  the  people  to  keep  and  bear  arms  shall  not  be 
infringed. 

ARTICLE  in. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house, 
without  the  consent  of  the  owner ;  nor  in  time  of  war,  but  in  a 
manner  to  be  prescribed  by  law. 

ARTICLE  IV.- 
The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures, 
shall  not  be  violated ;  and  no  warrants  shall  issue,  but  upon  prob- 
able cause,  supported  by  oath  or  affirmation,  and  particularly 
describing  the  place  to  be  searched,  and  the  persons  or  things  to 
be  seized. 

ARTICLE   V. 

No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise  in- 
famous crime,  unless  on  a  presentment  or  indictment  of  a  grand 
jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
militia,  when  in  actual  service  in  time  of  war  or  public  danger ; 
nor  shall  any  person  be  subject  for  the  same  offence  to  be  twice 
put  in  jeopardy  of  life  or  limb ;  nor  shall  be  compelled,  in  any 
criminal  case,  to  be  a  witness  against  himself;  nor  be  deprived  of 


AND  SELF-  G  O  VERNMENT. 


527 


life,  libert}-,  or  property,  without  due  process  of  law ;  nor  shall 
private  property  be  taken  for  public  use,  without  just  compensa- 
tion. 

ARTICLE   VI, 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to 
a  speedy  and  public  trial,  by  an  impartial  jury  of  the  state  and  dis- 
trict wherein  the  crime  shall  have  been  committed,  which  district 
shall  have  been  previously  ascertained  by  law,  and  to  be  informed 
of  the  nature  and  cause  of  the  accusation;  to  be  confronted  with 
the  witnesses  against  him;  to  have  compulsory  process  for  obtain- 
ing witnesses  in  his  favor,  and  to  have  the  assistance  of  counsel 
for  his  defence, 

ARTICLE   VII, 

In  suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved, 
and  no  fact  tried  by  a  jury  shall  be  otherwise  re-examined  in  any 
court  of  the  United  States,  than  according  to  the  rules  of  the 
common  law, 

ARTICLE   VIII. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed, 
nor  cruel  and  unusual  punishments  inflicted. 

ARTICLE   IX, 
The  enumeration  in  the  constitution  of  certain  rights,  shall  not 
be  construed  to  deny  or  disparage  others  retained  by  the  people. 

ARTICLE    X, 
The  powers  not  delegated  to  the  United  States  by  the  constitu- 
tion, nor  prohibited  by  it  to  the  states,  are  reserved  to  the  states 
respectively,  or  to  the  people. 

ARTICLE    XL 
The  judicial  power  of  the  United  States  shall  not  be  construed 
to  extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted 
against  one  of  the  United  States  by  citizens  of  another  state,  or 
by  citizens  or  subjects  of  any  foreign  state. 

ARTICLE  XII. 
The  electors  shall  meet  in  their  respective  states,  and  vote  by 
ballot  for  president  and  vice-president,  one  of  whom,  at  least,  shall 


528  ON  CIVIL  LIBERTY 

not  be  an  inhabitant  of  the  same  state  with  themselves ;  they  shall 
name  in  their  ballots  the  person  voted  for  as  president,  and  in  dis- 
tinct ballots  the  person  voted  for  as  vice-president ;  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  president,  and  of  all 
persons  voted  for  as  vice-president,  and  of  the  number  of  votes  for 
each,  which  list  they  shall  sign  and  certify  and  transmit  sealed 
to  the  seat  of  government  of  the  United  States,  directed  to  the 
president  of  the  senate;  the  president  of  the  senate  shall,  in 
presence  of  the  senate  and  house  of  representatives,  open  all  the 
certificates  and  the  votes  shall  then  be  counted ;  the  person  having 
the  greatest  number  of  votes  for  president,  shall  be  the  president, 
if  such  number  be  a  majority  of  the  whole  number  of  electors  ap- 
pointed ;  and  if  no  person  have  such  majority,  then  from  the  per- 
sons having  the  highest  numbers  not  exceeding  three  on  the  list 
of  those  voted  for  as  president,  the  house  of  representatives  shall 
choose  immediately,  by  ballot,  the  president.  But  in  choosing  the 
president,  the  votes  shall  be  taken  by  states,  the  representation 
from  each  state  having  one  vote ;  a  quorum  for  this  purpose  shall 
consist  of  a  member,  or  members  from  two-thirds  of  the  states, 
and  a  majority  of  all  the  states  shall  be  necessary  to  a  choice. 
And  if  the  house  of  representatives  shall  not  choose  a  president 
whenever  the  right  of  choice  shall  devolve  upon  them,  before  the 
fourth  day  of  March  next  following,  then  the  vice-president  shall 
act  as  president,  as  in  the  case  of  the  death  or  other  constitutional 
disability  of  the  president.  The  person  having  the  greatest  num- 
ber of  votes  as  vice-president,  shall  be  the  vice-president,  if  such 
number  be  a  majority  of  the  whole  number  of  electors  appointed  ; 
and  if  no  person  have  a  majority,  then  from  the  two  highest  num- 
bers on  the  list  the  senate  shall  choose  the  vice-president;  a 
quorum  for  the  purpose  shall  consist  of  two-thirds  of  the  whole 
number  of  senators,  and  a  majority  of  the  whole  number  shall  be 
necessary  to  a  choice.  But  no  person  constitutionally  ineligible 
to  the  office  of  president  shall  be  eligible  to  that  of  vice-president 
of  the  United  States. 

ARTICLE   XIII. 
Section  i.  Neither  slavery  nor  involuntary  servitude,  except  as 
a  punishment  for  crime,  whereof  the  party  shall  have  been  duly 
convicted,  shall  exist  within  the  United  States,  or  any  place  sub 
ject  to  their  jurisdiction. 


AND  SELF-  C  O  VERNMENT. 


529 


Section  2.  Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation. 

ARTICLE   XIV. 

Section  i.  All  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  state  wherein  they  reside.  No  state  shall  makfe 
or  enforce  any  law  which  shall  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States ;  nor  shall  any  state  deprive  any 
person  of  life,  liberty,  or  property,  without  due  process  of  law,  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  protection  of 
the  laws. 

Section  2.  Representatives  shall  be  apportioned  among  the  sev- 
eral states  according  to  their  respective  numbers,  counting  the 
whole  number  of  persons  in  each  state,  excluding  Indians  not 
taxed.  But  when  the  right  to  vote  at  any  election  for  the  choice 
of  electors  for  president  and  vice-president  of  the  United  States, 
representatives  in  congress,  the  executive  and  judicial  officers  of  a 
state,  or  the  members  of  the  legislature  thereof,  is  denied  to  any 
of  the  male  inhabitants  of  such  state,  being  twenty-one  years  of 
age,  and  citizens  of  the  United  States,  or  in  any  way  abridged, 
except  for  participation  in  rebellion  or  other  crime,  the  basis  of 
representation  therein  shall  be  reduced  in  the  proportion  which  the 
number  of  such  male  citizens  shall  bear  to  the  whole  number  of 
male  citizens  twenty-one  years  of  age  in  such  state. 

Section  3.  No  person  shall  be  a  senator  or  representative  in 
congress,  or  elector  of  president  and  vice-president,  or  hold  any 
office,  civil  or  military,  under  the  United  States,  or  under  any 
state,  who  having  previously  taken  an  oath  as  a  member  of  con- 
gress, or  as  an  officer  of  the  United  States,  or  as  a  member  of  any 
state  legislature,  or  as  an  executive  or  judicial  officer  of  any  state, 
to  support  the  Constitution  of  the  United  States,  shall  have  en- 
gaged in  insurrection  or  rebellion  against  the  same,  or  given  aid  or 
comfort  to  the  enemies  thereof.  But  congress  may,  by  a  vote  of 
two-thirds  of  each  house,  remove  such  disability. 

Section  4.  The  validity  of  the  public  debt  of  the  United  States, 
authorized  by  law,  including  debts  incurred  for  payment  of  pensions 
and  bounties  for  services  in  suppressing  insurrection  or  rebellion, 
shall  not  be  questioned.  But  neither  the  United  States  nor  any 
state  shall  assume  or  pay  any  debt  or  obligation  incurred  in  aid  of 

34 


530 


ON  CIVIL    LIBERTY  AND  SELF-GOVERNMENT. 


insurrection  or  rebellion  against  the  United  States,  or  any  claim 
for  the  loss  or  emancipation  of  any  slave ;  but  all  such  debts, 
obligations,  and  claims  shall  be  held  illegal  and  void. 

Section  5.  That  congress  shall  have  power  to  enforce,  by  appro- 
priate legislation,  the  provisions  of  this  article. 

ARTICLE  XV. 

Section  i.  The  right  of  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  by  the  United  States  or  by  any 
state  on  account  of  race,  color,  or  previous  condition  of  servitude. 

Section  2.  The  congress  shall  have  power  to  enforce  this  article 
by  appropriate  legislation. 


APPENDIX  XL 


THE    FRENCH    CONSTITUTION,   ADOPTED    AND    PRO- 
CLAIMED ON  THE  TWENTY-FOURTH  OF  JUNE   1793. 

THE    FIRST   REPUBLICAN   CONSTITUTION 


Had  the  space  permitted  it,  I  would  have  given  all  the  French 
constitutions,  from  the  first  in  the  first  revolution,  to  that  now 
called  the  constitution  of  the  empire.  As  it  is,  I  must  restrict 
myself  to  the  following  selection. 

I  have  copied  the  translation  of  the  first  republican  constitution 
of  France  from  a  work  by  Mr.  Bernard  Roelker,  of  the  New 
York  bar,  The  Constitutions  of  France,  Monarchical  and  Repub- 
lican, together  with  Brief  Historical  Remarks,  relating  to  their 
Origin,  and  the  late  Orleans  Dynasty,  Boston,  Mass.,  1848. 


DECLARATIONS  OF  THE  RIGHTS  OF  MAN  AND  OF 
CITIZENS. 

The  French  people,  convinced  that  oblivion  and  contempt  of 
the  natural  rights  of  man  are  the  only  causes  of  calamities  in  the 
world,  has  resolved  to  explain  these  sacred  and  inalienable  rights 
in  a  solemn  declaration,  that  all  citizens,  by  comparing  always  the 
acts  of  the  government  with  the  whole  social  union,  may  never 
suffer  themselves  to  be  oppressed  and  dishonored  by  tyranny ;  that 
the  people  may  always  have  before  its  eyes  the  fundamental  pillars 
of  its  liberty  and  welfare,  and  the  authorities  the  standard  of  their 
duties,  and  the  legislator  the  object  of  his  problem. 

It  accordingly  makes,  in  the  presence  of  the  Highest  Being,  the 
following  declaration  of  the  rights  of  man  and  of  the  citizens. 

531 


532 


ox  CIVIL  LIBERTY 


1.  The  object  of  society  is  the  general  welfare.  Government  is 
instituted,  to  insure  to  man  the  free  use  of  his  natural  and  inalien- 
able rights. 

2.  These  rights  are  equality,  liberty,  security,  property. 

3.  All  men  are  equal  by  nature  and  before  the  law. 

4.  Law  is  the  free  and  solemn  proclamation  of  the  general  will ; 
it  is  the  same  for  all,  be  it  protective  or  penal ;  it  can  command 
only  what  is  just  and  beneficial  to  society,  and  prohibit  only  what 
is  injurious  to  the  same. 

5.  All  citizens  are  equally  admissible  to  all  public  offices.  Free 
nations  are  in  their  elections  guided  by  no  other  considerations 
than  virtues  and  talents. 

6.  Freedom  is  the  power,  by  which  man  can  do  what  does  not 
interfere  with  the  rights  of  another ;  its  basis  is  nature  ;  its  stand- 
ard is  justice;  its  protection  is  law;  its  moral  boundary  is  the 
maxim  :  Do  not  unto  others  what  you  do  not  wish  they  should  do 
unto  you. 

7.  The  right  of  communicating  thoughts  and  opinions,  either 
through  the  press,  or  in  any  other  manner;  the  right  of  assembling 
peaceably ;  the  free  exercise  of  religion,  cannot  be  prohibited. 

The  necessity  publicly  to  claim  these  rights,  presupposes  the 
actual  existence  of  despotism,  or  the  fresh  recollection  of  the  same. 

8.  Security  rests  on  the  protection  given  by  society  to  each  of 
its  members,  for  the  preservation  of  his  person,  his  rights  and  his 
property. 

9.  Law  must  protect  the  general  and  the  individual  liberty 
against  the  oppression  of  those  who  govern. 

10.  No  one  can  be  accused,  arrested,  or  kept  in  close  custody, 
except  in  the  cases  specified  by  law,  and  according  to  the  pre- 
scribed forms  ;  every  citizen  who,  by  virtue  of  the  law,  is  sum- 
moned before  court  or  arrested,  must  immediately  obey ;  every 
refusal  shows  him  to  be  guilty. 

11.  Every  order  against  a  person,  in  cases  and  forms  not  speci- 
fied by  law,  is  arbitrary  and  tyrannical ;  the  person  against  whom 
such  an  order  should  be  executed  by  force,  has  the  right  to  resist 
it  by  force. 

12.  Those  who  cause,  aid  in,  sign,  execute  or  cause  to  be  ex- 
ecuted, such  arbitrary  acts,  are  culpable,  and  must  be  punished. 

13.  Since  every  man  is  deemed  to  be  innocent,  until  he  be 
proved  guilty,  if  his  condemnation  will  necessarily  lead  to  arrest, 


A  ND  SELF-  G  O  VERNMENT. 


533 


every  severity,  not  required  for  the  forthcoming  of  his  person,  is 
strictly  prohibited. 

14.  Only  he  who  has  been  first  heard  or  legally  summoned,  can 
be  condemned  and  punished,  and  this  only  by  a  law  promulgated 
before  the  commission  of  the  crime.  A  law  which  would  punish 
transgressions,  committed  before  its  publication,  would  be  tyranny  ; 
and  it  would  be  a  crime  to  give  retrospective  force  to  law. 

15.  Law  shall  order  punishments  only  which  are  unavoidably 
necessary ;  the  punishments  shall  be  suitable  to  the  crime,  and 
beneficial  to  society. 

16.  The  right  of  property  is  that  by  which  every  citizen  can  en- 
joy his  goods  and  his  income,  the  fruits  of  his  labor  and  industry, 
and  dispose  of  them  at  pleasure. 

17.  No  kind  of  occupation,  employment  and  trade  can  be  pro- 
hibited to  citizens. 

18.  Every  one  may  dispose  of  his  services  and  time  at  pleasure; 
but  he  can  neither  sell  himself  nor  be  sold.  His  person  is  inalien- 
able property.  The  law  does  not  recognize  a  state  of  servitude ; 
an  agreement  only  for  services  rendered  and  a  compensation  for 
them,  can  exist  between  him  who  labors  and  him  who  employs 
him. 

19.  Without  his  consent,  no  one  can  be  deprived  of  the  least 
part  of  his  property,  unless  "it  be  required  by  a  general  and  legally 
specified  necessity,  and  then  only  on  condition  of  a  just  and  pre- 
viously fixed  indemnity. 

20.  No  tax  can  be  laid  except  for  the  common  welfare.  All 
citizens  have  the  right  to  have  a  voice  in  the  laying  of  taxes,  to 
watch  over  the  application  of  them,  and  to  have  an  account  ren- 
dered thereof. 

21.  The  public  support  of  the  poor  is  a  sacred  obligation.  So- 
ciety takes  upon  itself  the  support  of  needy  citizens,  either  by 
giving  work  to  them,  or  by  giving  subsistence  to  those  who  are 
unable  to  work. 

22.  Instruction  is  a  want  for  all.  Society  shall  further  with  all 
its  power  the  progress  of  the  public  welfare,  and  regulate  instruc- 
tion according  to  the  wants  of  all  citizens. 

23.  Social  guarantee  rests  on  the  activity  of  all  to  secure  to  each 
one  the  enjoyment  and  the  preservation  of  his  rights.  This  guar- 
antee rests  on  the  sovereignty  of  the  people. 

24.  It  cannot  exist,  if  the  boundaries  of  public  administration 


534 


ON  CIVIL  LIBERTY 


be  not  definitely  specified  by  law,  and  unless  the  responsibility  of 
all  public  officers  be  secured. 

25.  Sovereignty  belongs  to  the  people.  It  is  one  and  indivisible, 
imprescriptible  and  inalienable. 

26.  No  single  part  of  the  people  can  exercise  the  power  of  the 
whole  people ;  but  every  assembled  section  of  the  sovereign  people 
enjoys  the  right  to  express  its  will  with  perfect  freedom. 

27.  Every  individual  who  would  assume  the  sovereignty  shall  be 
at  once  condemned  to  death  by  the  free  men. 

28.  The  people  have  the  right  to  revise,  amend,  and  alter  their 
constitution.  One  generation  cannot  bind  succeeding  generations 
to  its  laws. 

29.  Every  citizen  has  the  right  of  taking  part  in  the  legislation, 
and  of  appointing  his  representatives  or  agents. 

30.  Public  functions  are  in  their  nature  temporary  ;  they  cannot 
be  considered  as  distinctions,  nor  as  rewards,  but  as  obligations. 

31.  The  offences  of  the  representatives  of  the  people  and  of  its 
agents,  shall  not  be  unpunished.  No  one  has  the  right  to  hold 
himself  more  inviolable  than  the  other  citizens. 

32.  The  right  of  presenting  petitions  to  the  public  authorities 
can  in  no  case  be  interdicted,  abolished  or  limited. 

33.  Resistance  to  oppression  is  the  inference  from  the  other 
rights  of  man. 

34.  It  is  oppression  of  the  whole  of  society,  if  but  one  of  its 
members  be  oppressed.  Oppression  of  every  single  member  exists, 
when  the  whole  of  society  is  oppressed. 

35.  When  government  violates  the  rights  of  the  people,  insur- 
rection of  the  people  and  of  every  single  part  of  it,  is  the  most 
sacred  of  its  rights  and  the  highest  of  its  duties. 

(Signed)  COLLOT  D'HERBOIS,  President. 

DuRAND  Maillane,  Ducos,  Meaulle, 
Charles  de  la  Croix,  Gossuin,  P.  A.  Laloy, 

Secretaries. 


AND   SELF-GOVERNMENT. 


535 


CONSTITUTION 

OF  THE  TWENTY-FOURTH   OF  JUNE,  1 793. 
OF   THE   REPUBLIC. 

I.  The  French  Republic  is  one  and  indivisible. 

OF   THE   DIVISION   OF   THE  PEOPLE. 

'  2.  The  French  people  is,  for  the  purpose  of  exercising  its  sover- 
eignty, divided  into  primary  assemblies  according  to  cantons. 

3.  For  the  purpose  of  administration  and  justice,  it  is  divided 
into  departments,  districts,  and  municipalities. 

OF   THE   RIGHT   OF   CITIZENSHIP. 

4.  £very  man  born  and  living  in  France,  of  twenty-one  years 
of  age,  and  every  alien,  who  has  attained  the  age  of  twenty-one, 
and  has  been  domiciled  in  France  one  year,  and  lives  from  his 
labor ; 

or  has  acquired  property ; 

or  has  married  a  French  woman ; 

or  has  adopted  a  child  ; 

or  supports  an  aged  man  ; 
and  finally  every  alien  whom  the  legislative  body  has  declared  as 
one  well  deserving  of  the  human  race,  are  admitted  to  exercise  the 
rights  of  a  French  citizen. 

5.  The  right  of  exercising  the  rights  of  citizen  is  lost : 

by  being  naturalized  in  a  foreign  state ; 

by  accepting  offices  of  state,  or  favors  which  do  not  proceed 

from  a  democratic  government ; 
by  being  sentenced  to  dishonorable  or  corporal  punishments, 

till  reinstated  in  the  former  state. 

6.  The  exercise  of  the  rights  of  citizen  is  suspended : 

by  being  in  a  state  of  accusation  ; 

by  a  sentence  in  contumaciam,  so  long  as  this  sentence  has 
not  been  rescinded. 


536  '  ON  CIVIL  LIBERTY 


OF   THE   SOVEREIGNTY   OF   THE   PEOPLE. 

7.  The  sovereign  people  embraces  the  whole  of  French  citizens. 

8.  It  chooses  its  deputies  directly. 

9.  It  delegates  to  electors  the  choice  of  administrators,  public 
civil  judges,  penal  judges,  and  judges  of  cassation. 

10.  It  deliberates  on  laws. 

OF   THE   PRIMARY   ASSEMBLIES. 

11.  The  primary  assemblies  are  formed  of  the  citizens  who  have 
resided  six  months  in  a  canton. 

12.  They  consist  of  no  less  than   200  and  no  more  than  600 
citizens,  called  together  for  the  purpose  of  voting. 

13.  They  are  organized,  after  a  president,  secretaries  and  col- 
lectors of  votes  have  been  appointed. 

14.  They  exercise  their  own  police. 

15.  No  one  is  allowed  to  appear  there  with  arms. 

16.  The  elections  are  made  either  by  secret  or  loud  voting,  at 
the  pleasure  of  each  voter. 

17.  A  primary  meeting  can  in  no  case  prescribe  more  than  one 
manner  of  voting. 

18.  The  collectors  of  votes  note  down  the  votes  of  those  citizens 
who  cannot  write,  and  yet  prefer  to  vote  secretly. 

19.  The  votes  on  laws  are  given  by  "Yes,"  and  "  No." 

20.  The  elections  of  primary  assemblies  are  published  in  the 
following  manner  : 

The  united  citizeits  in  the  pritnary  assembly  at ,  numbering 

votes,  vote  for,  or  vote  against,  by  a  7najority  of . 

OF   THE    NATIONAL   REPRESENTATION. 

21.  Population  is  the  only  basis  of  national  representation. 

22.  For  every  40,000  individuals,  one  deputy  is  chosen. 

23.  Every  primary  assembly  which  is  formed  of  from  39,000  to 
41,000  individuals,  chooses  directly  a  deputy. 

24.  The  choice  is  effected  by  an  absolute  majority  of  votes. 

25.  Every  assembly  makes  an  abstract  of  the  votes,  and  sends  a 
commissioner  to  the  appointed  central  place  of  general  record. 

26.  If  at  the  first  voting,  no  absolute   majority  be  effected,  a 


AND  SELF-  G O  VERNMENT. 


537 


second  meeting  shall  be  held,  and  those  two  citizens  who  had  the 
most  votes,  shall  be  voted  for  again. 

27.  In  case  of  an  equal  division  of  votes,  the  oldest  person  has 
the  preference,  no  matter  whether  he  was  voted  for,  or  whether  he 
was  chosen  without  it.  In  case  of  an  equality  of  age,  the  casting 
of  lots  shall  decide. 

28.  Every  Frenchman,  who  enjoys  the  rights  of  a  citizen,  is 
eligible  throughout  the  whole  republic. 

29.  Every  deputy  belongs  to  the  whole  nation. 

30.  In  case  of  non-acceptance,  of  abdication,  or  expiration  of 
office,  or  of  the  death  of  a  deputy,  the  primary  assembly  which  had 
chosen  him  shall  choose  a  substitute. 

31.  A  deputy  who  hands  in  his  resignation,  cannot  leave  his  post 
till  his  successor  shall  have  been  appointed. 

32.  The  French  people  assembles  every  year  on  the  ist  of  May 
for  election. 

■TyT^.  It  proceeds  thereto,  whatever  the  number  of  citizens  [present] 
may  be,  who  have  a  right  to  vote. 

34.  Extraordinary  primary  meetings  are  held  at  the  demand  of 
one-fifth  of  the  eligible  citizens. 

35.  The  meeting  is,  in  this  case,  called  by  the  municipal  author- 
ity of  the  usiial  place  of  assembly. 

36.  These  extraordinary  meetings  can  transact  business  only  when 
at  least  more  than  one-half  of  the  qualified  voters  are  present. 

OF   THE    ELECTORAL   ASSEMBLIES. 

37.  The  citizens,  united  in  primary  assemblies,  nominate  in  pro- 
portion of  200  citizens,  (they  may  be  present  or  not,)  one  elector ; 
two,  for  from  301  to  400  ;  three,  for  from  501  to  600. 

38.  The  holding  of  election  meetings,  and  the  manner  of  elec- 
tion, are  the  same  as  in  the  primary  meetings. 

OF   THE   LEGISLATIVE   BODY. 

39.  The  legislative  body  is  one,  indivisible  and  continual. 

40.  Its  session  lasts  one  year. 

41.  It  assembles  on  the  ist  of  July. 

42.  The  national  assembly  cannot  be  organized,  unless  at  least 
one  more  than  one-half  of  the  deputies  are  present. 

43.  The  deputies  can,  at  no  time,  be  held  answerable,  accused 


538 


ON  CIVIL  LIBERTY 


or  condemned  on  account  of  opinions  uttered  within  the  legislative 
body. 

44.  In  criminal  cases,  they  may  be  arrested  if  caught  in  the  act ; 
but  the  warrant  of  arrest  and  the  warrant  of  committal  can  be 
issued  only  by  the  legislative  body. 

MODE   OF   PROCEDURE   OF   THE   LEGISLATIVE    BODY. 

45.  The  sessions  of  the  national  assembly  are  public. 

46.  The  debates  in  their  sessions  shall  be  printed. 

47.  It  cannot  deliberate,  unless  it  consist  of  200  members. 

48.  It  cannot  refuse  to  members  the  floor,  in  the  order  in  which 
they  demand  the  same. 

49.  It  decides  by  a  majority  of  those  present. 

50.  Fifty  members  have  the  right  to  demand  a  call  by  names. 

51.  It  has  the  right  of  censorship  on  the  conduct  of  the  members 
in  its  midst. 

52.  It  exercises  the  power  of  police  at  the  place  of  its  sessions, 
and  within  the  whole  extent  of  its  environs. 

OF   THE   FUNCTIONS   OF   THE   LEGISLATIVE    BODY. 

53.  The  legislative  body  proposes  laws,  and  issues  decrees. 

54.  By  the  general  name  of  Imu,  are  understood"  the  provisions 
of  the  legislative  body  which  concern  : 

the  civil  and  penal  legislation  ; 

the  general  administration  of  revenues  and  of  the  ordinary 

expenditures  of  the  republic ; 
the  national  domains  ; 

the  inscription,  alloy,  stamp  and  names  of  coins; 
declaration  of  war ; 

every  new  general  division  of  the  French  territory; 
public  instruction ; 
public  demonstrations  of  honor  to  the  memory  of  great  men. 

55.  By  the  particular  namt  of  decrees  are  understood  those 
enactments  of  the  legislative  body,  which  concern  : 

the  annual  establishment  of  the  land  and  marine  forces; 
the  permission  or  refusal  of  the  marching  of  foreign  troops 

through  the  French  territory  ; 
the  admission  of  foreign  vessels  of  war  into  the  ports  of  the 

republic ; 


AND  SELF-GOVERNMENT.  539 

the  measures  for  the  common  peace  and  safety ; 

the  distribution  of  annual  and  momentary  relief  and  of 
public  works  ; 

the  orders  for  the  stamping  of  coins  of  every  description ; 

the  unforeseen  and  extraordinary  expenses ; 

the  local  and  particular  orders  for  an  administration,  a  com- 
mune, and  any  kind  of  public  works ; 

the  defence  of  the  territory  ; 

the  ratification  of  treaties  ; 

the  nomination  and  removal  of  the  commander-in-chief  of 
the  army ; 

the  carrying  into  effect  the  responsibility  of  members  of  the 
executive  council,  and  of  public  officers; 

the  accusation  of  discovered  conspiracies  against  the  com- 
mon safety  of  the  republic  ; 

every  alteration  in  the  division  of  the  French  territory ; 

the  national  rewards. 

OF   THE   MAKING   OF   LAWS. 

56.  A  notice  must  precede  the  introduction  of  a  bill. 

57.  Not  till  after  a  fortnight  from  the  giving  of  notice  can  the 
debate  begin,  and  the  law  be  temporarily  accepted. 

58.  The  proposed  law  is  printed  and  sent  to  all  the  communes 
of  the  republic,  under  the  address  of,  Proposed  law. 

59.  If,  forty  days  after  the  sending  in  of  the  proposed  law,  of 
the  absolute  maiority  of  departments,  one-tenth  of  all  the  primary 
meetings,  legally  assembled  by  the  departments,  have  not  protested, 
the  bill  is  accepted  and  becomes  a  law. 

60.  If  protest  be  made,  the  legislative  body  calls  together  the 
primary  meetings. 

OF   THE   SUPERSCRIPTION    OF   LAWS   AND    DECREES. 

61.  The  laws,  decrees,  sentences,  and  all  public  transactions  are 
superscribed  : 

In  the  name  of  the  French  people,  in  the year  of  the  French 

Republic. 

OF   THE    EXECUTIVE   POWER. 

62.  There  shall  be  an  executive  council,  consisting  of  twenty- 
four  members. 

63.  The   electoral   assembly  of  each   department   nominates   a 


540 


ON  CIVIL   LIBERTY 


candidate.     The  legislative  body  chooses  from  this  general  list  the 
members  of  the  executive  council. 

64.  It  shall  be  renewed  each  half  session  of  every  legislature,  in 
the  last  months  of  its  session. 

65.  The  executive  council  has  the  management  and  supervision 
of  the  general  administration.  Its  activity  is  limited  to  the  execu- 
tion of  laws  and  decrees  of  the  legislative  body. 

65.  It  appoints,  but  not  out  of  its  midst,  the  highest  agents  of 
the  general  administration  of  the  republic. 

67.  The  legislative  body  establishes  the  number  of  these  agents, 
and  their  business. 

d'^.  These  agents  form  no  council.  They  are  separated  one  from 
the  other,  and  have  no  relation  among  themselves.  They  exercise 
no  personal  power. 

69.  The  executive  council  chooses,  but  not  from  its  midst,  the 
foreign  agents  of  the  republic. 

70.  It  negotiates  treaties. 

71.  The  members  of  the  executive  council  are,  in  case  of  viola- 
tion of  duties,  accused  by  the  legislative  body. 

72.  The  executive  council  is  responsible  for  the  non-execution 
of  the  laws  and  decrees,  and  the  abuses,  of  which  it  does  not  give 
notice. 

73.  It  recalls  and  substitutes  the  agents  at  pleasure. 

74.  It  is  obliged,  if  possible,  to  inform  the  judicial  authorities 
regarding  them. 

OF    THE    MUTUAL    RELATIONS    BETWEEN    THE    EXECUTIVE    COUNCIL, 
AND    THE   LEGISLATIVE    BODY. 

75.  The  executive  council  shall  have  its  seat  near  the  legislative 
body.  It  shall  have  admittance  to,  and  a  special  seat  at  the  place 
of  session. 

76.  It  shall  every  time  be  heard,  when  it  shall  have  to  give 
account. 

77.  The  legislative  body  shall  call  it  into  its  midst,  in  whole  or 
in  part,  when  it  is  thought  necessary. 

OF   THE   ADMINISTRATIVE   AUTHORITIES   AND   THE   MUNICIPALITIES. 

78.  There  shall  be  a  municipal  authority  in  eac^i  commune  of 
the  republic  ;  and  in  each  district  an  intermediate  administration  ; 
and  in  each  department  a  central  administration. 


AND  SELF-GOVERNMENT.  541 

79.  The  municipal  officers  are  chosen  by  the  assemblies  of  the 
commune. 

80.  The  administrators  are  chosen  by  the  electoral  assemblies  of 
the  departments  and  of  the  district. 

81.  The  municipalities  and  the  administrative  authorities  ape 
annually  renewed  one-half. 

82.  The  administrative  authorities  and  municipal  officers  have 
not  a  representative  character.  They  can,  in  no  case,  limit  the 
resolves  of  the  legislative  body,  nor  the  execution  of  them. 

S3.  The  legislative  body  assigns  the  business  of  the  municipal 
officers  and  of  the  administrative  authorities,  the  rules  regarding 
their  subordination,  and  the  punishments  to  which  they  may  be- 
come liable. 

84.  The  sessions  of  the  municipalities  and  of  the  administrative 
authorities  are  held  in  public. 

OF   CIVIL  JUSTICE. 

85.  The  civil  and  penal  code  is  the  same  for  the  whole  re- 
public. 

86.  No  encroachment  can  be  made  upon  the  right  of  citizens 
to  have  their  matters  in  dispute  decided  on  by  arbitrators  of  their 
own  choice. 

87.  The  decision  of  these  arbitrators  is  final,  unless  the  citizens 
have  reserved  the  right  of  protesting. 

88.  There  shall  be  justices  of  the  peace,  chosen  by  the  citizens 
of  the  districts,  appointed  by  law. 

89.  They  shall  conciliate  and  hold  court  without  fees. 

90.  Their  number  and  extent  of  power  shall  be  established  by 
the  legislative  body. 

91.  There  shall  be  public  judges  of  arbitration,  who  are  chosen 
by  electoral  assemblies. 

92.  Their  number  and  districts  are  fixed  by  the  legislative  body. 

93.  They  shall  decide  on  matters  in  controversy,  which  have 
not  been  brought  to  a  final  decision  by  private  arbitrators  or  by 
the  justices  of  the  peace. 

94.  They  shall  deliberate  publicly. 
They  shall  vote  with  loud  voice. 

They  shall  decide  in  the  last  resort  on  oral  pleadings,  or  on  a 
simple  petition,  without  legal  forms  and  without  cost. 
They  shall  assign  the  reasons  of  their  decisions. 


542 


ON  CIVIL  LIBERTY 


95.  The  justices  of  the  peace  and  the  public  arbitrators  are 
chosen  annually. 

OF   CRIMINAL  JUSTICE. 

96.  In  criminal  cases,  no  citizen  can  be  put  on  trial,  except  a 
true  bill  of  complaint  be  found  by  a  jury,  or  by  the  legislative 
body. 

The  accused  shall  have  advocates,  either  chosen  by  themselves, 
or  appointed  officially. 

The  proceedings  are  in  public. 

The  state  of  facts  and  the  intention  are  passed  upon  by  a  jury. 

The  punishment  is  executed  by  a  criminal  authority. 

97.  The  criminal  judges  are  chosen  annually  by  the  electoral 
assemblies. 

OF   THE    COURT   OF   CASSATION. 

98.  There  is  a  court  of  cassation  for  the  whole  republic. 

99.  This  court  takes  no  cognizance  of  the  state  of  facts. 

It  decides  on  the  violation  of  matters  of  form,  and  on  trans- 
gressions expressed  by  law. 

100.  The  members  of  this  court  are  appointed  annually  through 
the  electoral  assemblies. 

OF   THE   GENERAL   TAXES. 

loi.  No  citizen  is  excluded  from  the  honorable  obligation  to 
contribute  towards  the  public  expenses. 

OF   THE   NATIONAL   TREASURY. 

102.  The  national  treasury  is  the  central  point  of  the  revenues 
and  expenses  of  the  republic. 

103.  It  is  managed  by  public  accountants,  whom  the  legislative 
body  shall  elect. 

104.  These  agents  are  supervised  by  officers  of  account,  whom 
the  legislative  body  shall  elect,  but  who  cannot  be  taken  from  their 
own  body :  they  are  responsible  for  abuses  of  which  they  do  not 
give  let  al  notice  to  the  courts. 

OF   THE   RENDITION   OF   ACCOUNTS. 

105.  The  accounts  of  the  agents  of  the  national  treasury,  and 
those  of  the  administrators  of  public  moneys  are  taken  annually, 
by  responsible  commissioners  appointed  by  the  executive  council. 


AND  SELF-GO VERNMENT. 


543 


io6.  Those  persons  appointed  to  revise  the  accounts  are  under 
the  supervision  of  commissioners,  who  are  elected  by  the  legisla- 
tive body,  not  out  of  their  own  number ;  and  they  are  responsible 
for  the  frauds  and  mistakes  of  accounts,  of  which  they  do  not 
give  notice. 

The  legislative  body  preserves  the  accounts. 

OF   THE   MILITARY   FORCES   OF   THE   REPUBLIC. 

107.  The  general  military  power  of  the  republic  consists  of  the 
whole  people. 

108.  The  republic  supports,  also,  in  times  of  peace,  a  paid  land 
and  marine  force. 

109.  All  Frenchmen  are  soldiers  3  all  shall  be  exercised  in  the 
use  of  arms. 

no.  There  is  no  generalissimo. 

111.  The  distinction  of  grade,  the  military  marks  of  distinction 
and  subordination,  exist  only  in  service  and  in  time  of  its  duration. 

112.  The  general  military  force  is  used  for  the  preservation  of 
order  and  peace  in  the  interior;  it  acts  only  on  a  written  requisi- 
tion of  the  constituted  authorities. 

113.  The  general  military  force  against  foreign  enemies  is  under 
the  command  of  the  executive  council. 

114.  No  armed  body  can  deliberate. 

OF   THE   NATIONAL   CONVENTION. 

115.  If  of  the  absolute  majority  of  departments,  the  tenth  part 
of  their  regularly  formed  primary  assemblies  demand  a  revision  of 
the  constitution,  or  an  alteration  of  some  of  its  articles;  the  legis- 
lative body  is  obliged  to  call  together  all  primary  assemblies  of  the 
republic,  in  order  to  ascertain  whether  a  national  convention  shall 
be  called, 

116.  The  national  convention  is  formed  in  like  manner  as  the 
legislatures,  and  unites  in  itself  the  highest  power. 

117.  It  is  occupied,  as  regards  the  constitution,  only  with  those 
subjects  which  caused  its  being  called  together. 

OF  THE  RELATIONS  OF  THE  FRENCH  REPUBLIC  TOWARDS  FOREIGN 

NATIONS. 

1 18.  The  French  nation  is  the  friend  and  natural  ally  of  free 
nations. 


544     <^^^'  CIVIL  LIBERTY  AND  SELF-GO VERMMENT. 

119.  It  does  not  interfere  with  the  affairs  of  government  of  other 
nations.     It  suffers  no  interference  of  other  nations  with  its  own. 

1 20.  It  serves  as  a  place  of  refuge  for  all  who,  on  account  of 
liberty,  are  banished  from  their  native  country. 

These  it  refuses  to  deliver  up  to  tyrants. 

121.  It  concludes  no  peace  with  an  enemy  that  holds  possession 
of  its  territory. 

OF   THE   GUARANTY   OF   RIGHTS. 

122.  The  constitution  guarantees  to  all  Frenchmen  equality, 
liberty,  security,  property,  the  public  debt,  free  exercise  of  religion, 
general  instruction,  public  assistance,  absolute  liberty  of  the  press, 
the  right  of  petition,  the  right  to  hold  popular  assemblies,  and  the 
enjoyment  of  all  the  rights  of  man. 

123.  The  French  republic  respects  loyalty,  courage,  age,  filial 
love,  misfortune.  It  places  the  constitution  under  the  guaranty  of 
all  virtues. 

124.  The  declaration  of  the  rights  of  man  and  the  constitution 
shall  be  engraven  on  tables,  to  be  placed  in  the  midst  of  the  legis- 
lative body,  and  in  publig  places. 

(Signed)  COLLOT   D'HERBOIS,  President. 

Durand-Maillane,  Duces,  Meauxle, 

Charles  de  la  Croix,  Gossuin,  P.  A.  Lalov, 

Secretaiy 


APPENDIX  XII. 

FRENCH  CHARTER  OF  LOUIS  XVIII.  AND  THAT  ADOPTED 
IN  THE  YEAR  1830. 

The  following  is  the  charter  of  1830,  as  I  translated  it  in  that 
year,  for  a  work  published  in  Boston,  under  the  title  of  "  Events  in 
Paris  during  the  26th,  27th,  28th  and  29th  of  July:  translated 
from  the  French." 

This  charter  of  August  8,  1830,  is  in  substance  the  charter  of 
Louis  XVIII.  with  such  changes  as  the  chambers  adopted  in  favor 
of  liberty.  The  new  articles,  or  the  amendments  of  the  old  ones, 
are  printed  in  italics,  and  the  old  readings  or  suppressed  articles 
are  given  in  notes :  so  that  the  paper  exhibits  both  the  charters. 


FRENCH   CHARTER  OF   1830. 

The  whole  preamble  of  the  ancient  charter  was  suppressed,  as 
containing  the  principle  of  concession  and  octroi  (grant),  incom- 
patible with  that  of  the  acknowledgment  of  national  sovereignty. 

The  following  is  the  substitution  of  the  preamble : 

DECLARATION  OF  THE   CHAMBER   OF   DEPUTIES. 

The  chamber  of  deputies,  taking  into  consideration  the  imperi- 
ous necessity  which  results  from  the  events  of  the  26th,  27th,  28th 
and  29th  of  July,  and  the  following  days;  and  from  the  situation 
in  which  France  is  placed  in  consequence  of  the  violation  of  the 
constitutional  charter : 

Considering,  moreover,  that  by  this  violation,  and  the  heroic 
resistance  of  the  citizens  of  Paris,  his  majesty  Charles  X.,  his  royal 
highness  Louis  Antoine,  dauphin,  and  all  the  members  of  the  senior 

35  545 


546  ON   CIVIL   LIBERTY 

branch  of  the  royal  house,  are  leaving,  at  this  moment,  the  French 
territory — 

Declares  that  the  throne  is  vacant  de  facto  et  de  jure,  and  that  it 
is  necessary  to  fill  it. 

The  chamber  of  deputies  declares  secondly,  that  according  to  the 
wish,  and  for  the  interest  of  the  French  people,  the  preamble  of 
the  constitutional  charter  is  suppressed,  as  wounding  the  national 
dignity  m  appearing  to  grant  to  the  French  rights  which  essentially 
belong  to  them ;  and  that  the  following  articles  of  the  same  char- 
ter ought  to  be  suppressed  or  modified  in  the  following  manner. 

Louis  Philippe,  King  of  the  French,  to  all  to  whom  these  pres- 
ents shall  come,  greeting : 

We  have  ordained  and  ordain,  that  the  constitutional  charter  of 
1814,  as  amended  by  the  two  chambers  on  the  7th  August,  and 
adopted  by  us  on  the  9th,  be  published  anew  in  the  following 
terms : 

PUBLIC  LAW  OF  THE  FRENCH. 

Art.  I.  Frenchmen  are  equal  before  the  law,  whatever  otherwise 
may  be  their  titles  or  their  rank. 

Art.  2.  They  contribute  in  proportion  to  their  fortunes  to  the 
charges  of  the  state. 

Art.  3.  They  are  all  equally  admissible  to  civil  and  military  em- 
ployments. 

Art.  4.  Their  individual  liberty  is  equally  guaranteed.  No  per- 
son can  be  either  prosecuted  or  arrested,  except  in  cases  provided 
for  by  the  law,  and  in  the  form  which  it  prescribes. 

Art.  5.  Each  one  may  profess  his  religion  with  equal  liberty, 
and  shall  receive  for  his  religious  worship  the  same  protection. 

Art.  6.  The  ministers  of  the  catholic,  apostolic  and  Roman 
religion,  professed  by  the  majority  of  the  French,  and  those  of  other 
Christian  worship,  receive  stipends  from  the  public  treasury.^ 

Art.  7.  Frenchmen  have  the  right  of  publishing  and  causing  to 
be  printed  their  opinions,  provided  they  conform  themselves  to  the 
laws. 

V 

'  This  article  6  is  substituted  for  the  articles  6  and  7  of  the  old  charter,  which 
ran  thus : 

6.  However,  the  catholic,  apostolic  and  Roman  religion,  is  the  religion  of  the 
state. 

7.  The  ministers  of  the  catholic,  apostolic  and  Roman  religion,  and  those  of 
other  Christian  confessions,  alone  receive  stipends  from  the  public  treasury. 


AND  SELF-GOVERNMENT. 


547 


The  censorship  can  never  be  re-established.^ 

Art.  8.  All  property  is  inviolable,  without  exception  of  that 
which  is  called  national,  the  la-\v  making  no  difference  between 
them. 

Art.  9.  The  state  can  exact  the  sacrifice  of  property  for  the  good 
of  the  public,  legally  proved,  but  with  a  previous  indemnity. 

Art.  10.  All  examination  into  the  opinions  and  votes  given 
before  the  restoration  is  interdicted,  and  the  same  oblivion  is 
commanded  to  be  adopted  by  the  tribunals  and  by  the  citizens. 

Art.  II.  The  conscription  is  abolished.  The  method  of  re- 
<:ruiting  the  army  for  land  and  sea  is  to  be  determined  by  the  law. 

FORMS   OF   the   KING'S    GOVERNMENT. 

Art.  12.  The  person  of  the  king  is  inviolable  and  sacred.  His 
ministers  are  responsible.  To  the  king  alone  belongs  executive 
power. 

Art.  13.  The  king  is  the  supreme  head  of  the  state;  commands 
the  forces  by  sea  and  by  land  ;  declares  war,  makes  treaties  of 
peace  and  alliance  and  of  commerce ;  he  appoints  to  all  offices  in 
public  administration,  and  makes  all  regulations  necessary  for  the 
execution  of  the  laws,  without  ever  having  power  either  to  suspend 
the  laws  themselves,  or  dispeftse  with  their  execution. 

Nevertheless,  no  foreign  troops  can  be  admitted  into  the  service  of 
the  state  without  an  express  law.'' 

Art.  14.  The  legislative  power  is  to  be  exercised  collectively  by 
the  king,  the  chamber  of  peers,  and  the  chamber  of  deputies. ^ 

Art.  15.  The  proposition  of  the  laws  belongs  to  the  king,  to  the 
chamber  of  peers,  and  to  the  chamber  of  deputies. 


'  Article  8  of  the  old  charter : 

The  French  have  the  right  to  publish  and  to  cause  to  be  published  their 
opinions,  conforming  themselves  to  the  laws,  which  shall  prevent  the  abuse  of 
this  liberty. 

'  Article  14  of  the  old  charter: 

The  king  is  the  supreme  head  of  the  state,  commands  the  forces  by  land  and 
sea,  declares  war,  makes  treaties  of  peace,  alliance  and  commerce,  appoints  to 
all  offices  of  public  administration,  and  makes  rules  and  orders  necessary  for  the 
execution  of  the  laws  and  the  safety  of  the  state. 

3  There  was  in  article  15  of  the  old  charter:  and  the  chamber  of  deputies  of 
the  departments.     These  last  three  words  have  been  suppressed. 


548 


ON  CIVIL  LIBERTY 


Nevertheless,  all  the  laws  of  taxes  are  to  be  first  voted  by  the 
chamber  of  deputies.'^ 

Art.  1 6.  Every  law  is  to  be  discussed  and  freely  voted  by  the 
majority  of  each  of  the  two  chambers. 

Art.  IT'  If  a  proposed  law  be  rejected  by  one  of  the  three  powers, 
it  cannot  be  brought  forward  again  in  the  same  session.^ 

Art.  1 8.  The  king  alone  sanctions  and  promulgates  the  laws. 

Art.  19.  The  civil  list  is  to  be  fixed  for  the  duration  of  the  reign 
of  the  legislative  assembly  after  the  accession  of  the  king. 

OF  the  chamber  of  peers. 

Art.  20.  The  chamber  of  peers  is  to  form  an  essential  portion 
of  the  legislative  power. 

Art.  21.  It  is  convoked  by  the  king  at  the  same  time  as  the 
chamber  of  deputies.  The  session  of  one  begins  and  ends  at  the 
same  time  as  that  of  the  other. 

Art.  22.  Any  assembly  of  the  chamber  of  peers,  which  should 
be  held  at  a  time  which  is  not  that  of  the  session  of  the  chamber 
of  deputies,  is  illicit,  and  null  of  full  right,  except  only  the  case  in 
which  it  is  assembled  as  a  court  of  justice,  and  then  it  can  only  exer- 
cise judicial  functions.^ 


»  Art.  15  is  in  the  place  of  art.  16  and  17  of  the  old  charter,  which  were 
thus  : 

Art.  16.  The  king  proposes  the  law. 

Art.  17.  The  proposition  of  the  law  is  carried,  at  the  pleasure  of  the  king,  to 
the  chamber  of  peers  or  that  of  the  deputies,  except  the  law  of  taxes,  which  is 
to  be  directed  to  the  chamber  of  deputies. 

»  Art.  17  is  substituted  for  articles  19,  20  and  21,  suppressed  as  useless,  after 
the  preceding  provisions.     They  were  the  following  : 

Art.  19.  The  chambers  have  the  right  to  petition  the  king  to  propose  a  law 
on  any  subject  whatever,  and  to  indicate  what  seems  to  them  proper  the  law 
ought  to  contain. 

Art.  20.  This  request  may  be  made  by  each  of  the  chambers ;  but,  after  having 
l^een  discussed  in  secret  committee,  it  is  not  to  be  sent  to  the  other  chamber,  by 
that  which  proposes,  until  after  the  lapse  of  ten  days. 

Art.  21.  If  the  proposition  is  adopted  by  the  other  chamber,  it  is  to  be  laid 
before  the  king;  if  it  is  rejected,  it  cannot  be  presented  again  in  the  same 
session. 

3  This  is  article  26  of  the  old  charter,  augmented  by  this  provision,  which  was 
not  in  the  former,  and  the  words  following  have  been  suppressed  :  or  that  it 
should  be  ordained  by  the  king. 


A  ND  SELF-  C  O  VERNMENT. 


549 


Art.  23.  The  nomination  of  the  peers  of  France  belongs  to  the 
king.  Their  number  is  unlimited  ;  he  can  vary  their  dignities,  and 
name  them  peers  for  life,  or  make  them  hereditary  at  his  pleasure. 

Art.  24.  Peers  can  enter  the  chamber  at  twenty-five  years  of 
age,  but  have  only  a  deliberative  voice  at  the  age  of  thirty  years. 

Art.  25.  The  chamber  of  peers  is  to  be  presided  over  by  the 
chancellor  of  France ;  and  in  his  absence,  by  a  peer  named  by  the 
king. 

Art.  26.  The  princes  of  blood  are  to  be  peers  by  right  of  birth. 
They  are  to  take  their  seats  immediately  behind  the  president.' 

Art.  27.  The  sittings  of  the  chamber  of  peers  are  public  as  that 
of  the  chamber  of  deputies. ' 

Art.  28.  The  chamber  of  peers  takes  cognizance  of  high  treason, 
and  of  attempts  against  the  security  of  the  state,  which  is  to  be 
defined  by  the  law. 

Art.  29.  No  peer  can  be  arrested  but  by  the  authority  of  the 
chamber,  or  judged  but  by  it  in  a  criminal  matter. 

OF   THE   CHAMBER   OF   DEPUTIES. 

Art.  30.  The  chamber  of  deputies  will  be  composed  of  deputies 
elected  by  the  electoral  colleges ;  the  organization  of  which  is  to 
be  determined  by  law.^ 

Art.  31.  The  deputies  are  to  be  elected  for  five  years.* 

Art.  32.  No  deputy  can  be  admitted  into  the  chamber  till  he 


»  Art.  30  of  the  old  charter  : 

The  members  of  the  royal  family  and  the  princes  of  the  blood  are  peers  by 
the  right  of  birth ;  they  sit  immediately  behind  the  president ;  but  they  have  no 
deliberative  voice  before  their  twenty- fifth  year. 

Art.  31  was  thus  : 

The  princes  cannot  take  their  seat  in  the  chamber,  but  by  order  of  the  king, 
expressed  for  each  session  by  a  message,  under  penalty  of  rendering  everything 
null  which  has  been  done  in  their  presence.     Suppressed. 

»  All  deliberations  of  the  chamber  of  peers  are  secret.  Art.  32  of  the  old 
charter. 

3  Art.  36  was  thus  : 

Every  department  shall  have  the  same  number  of  deputies  which  it  has  pre- 
viously had.     Suppressed. 

*  Art.  37  of  the  old  charter: 

The  deputies  shall  be  elected  for  five  yea«s,  and  in  such  a  way  that  the  cham- 
ber is  renewed  each  year  by  a  fifth. 


550 


aV  CIVIL  LIBERTY 


has  attained  the  age  of  thirty  years,  and  if  he  does  not  possess  the 
other  conditions  prescribed  by  the  law.^ 

Art.  33.  If,  however,  there  should  not  be  in  the  department 
fifty  persons  of  the  age  specified /^_>7>/^  the  amoiijit  of  taxes  fixed  by 
law,  their  number  shall  be  completed  from  the  persons  who  pay 
the  greatest  amount  of  taxes  under  the  amount  fixed  by  law.' 

Art.  34.  No  person  can  be  an  elector  if  he  is  under  twenty-five 
years  of  age  ;  and  if  he  does  not  possess  all  the  other  conditions  deter- 
mined by  the  law.'^ 

Art.  35.  The  presidents  of  the  electoral  colleges  are  elected  by 
the  electors.'^ 

Art.  2,(>-  The  half  at  least  of  the  deputies  are  to  be  chosen  from 
those  who  have  their  political  residence  in  the  departments. 

Art.  37.  The  president  of  the  chamber  of  deputies  is  to  be  elected 
by  the  chamber  itself  at  the  openitig  of  each  session.^ 

Art.  38.  The  sittings  of  the  chamber  are  to  be  public,  but  the 
request  of  five  members  will  be  sufficient  that  it  forms  itself  into  a 
secret  committee. 

Art.  39.  The  chamber  divides  itself  into  btireaux  (committees) 
to  discuss  the  projects  of  laws,  which  may  have  been  presented  from 
the  king.® 


'  Art.  38  of  the  old  charter : 

No  deputy  can  be  admitted  into  the  chamber  if  he  is  not  forty  years  old,  and 
if  he  does  not  pay  direct  taxes  of  1000  francs. 

*  Article  39  of  the  old  charter : 

If,  nevertheless,  there  should  not  be  in  the  department  fifty  persons  of  the  indi- 
cated age,  paying  at  least  1000  francs  direct  taxes,  their  number  will  be  com- 
pleted by  those  who  pay  the  highest  taxes  under  1000  francs;  and  these  may  be 
elected  concurrently  with  the  others. 

3  Art.  40  of  the  old  charter : 

The  electors  who  concur  in  electing  the  deputy  cannot  have  the  right  of  suf- 
frage, if  they  do  not  pay  a  direct  tax  of  300  francs ;  and  if  they  are  less  than  thirty 
years  of  age. 

♦  Art.  41  of  the  old  charter : 

The  presidents  of  the  electoral  colleges  shall  be  nominated  by  the  king,  and 
be,  by  right,  members  of  the  college. 

5  Art.  43  of  the  old  charter : 

The  president  of  the  chamber  of  deputies  is  nominated  by  the  king,  from  a 
list  of  five  members,  presented  by  the  chamber. 

^  In  consequence  of  the  initiative,  art.  46  and  47  are  suppressed,  which  were 
thus: 

46.  No  amendment  can  be  made  to  a  law,  if  it  has  not  been  proposed  or  con 


AND  SELF-GOVERNMENT. 


551 


Art.  40.  No  tax  can  be  established  nor  imposed,  if  it  has  not  been 
consented  to  by  the  two  chambers,  and  sanctioned  by  the  king. 

Art.  41.  The  land  and  house  tax  can  only  be  voted  for  one 
year.     The  indirect  taxes  may  be  voted  for  many  years. 

Art.  42.  The  king  convokes  every  year  the  two  chambers,  he 
prorogues  them,  and  may  dissolve  that  of  the  deputies ;  but  in  this 
case  he  must  convoke  a  new  one  within  the  period  of  three  months. 

Art.  43,  No  bodily  restraint  can  be  exercised  against  a  member 
of  the  chamber  during  the  session,  nor  for  six  weeks  which  precede 
or  follow  the  session. 

Art.  44.  No  member  of  the  chamber  can  be,  during  the  session, 
prosecuted  or  arrested  in  a  criminal  matter,  except  taken  in  the  act, 
till  after  the  chamber  has  permitted  his  arrest. 

Art.  45.  Every  petition  to  either  of  the  chambers  must  be  made 
in  writing.  The  law  interdicts  its  being  carried  in  person  to  the 
bar. 

OF   THE   MINISTERS. 

Art.  46.  The  ministers  can  be  members  of  the  chamber  of  peers 
or  the  chamber  of  deputies. 

They  have,  moreover,  their  entrance  into  either  chamber,  and 
are  entitled  to  be  heard  when  they  demand  it. 

Art.  47.  The  chamber  of  deputies  has  the  right  of  impeaching 
the  ministers,  or  of  transferring  them  before  the  chamber  of  peers, 
which  alone  has  the  right  to  judge  them.' 

JUDICIAL   regulations. 

Art.  48.  All  justice  emanates  from  the  king ;  it  is  administered 
in  his  name  by  the  judges,  whom  he  nominates,  and  whom  he 
institutes. 

Art.  49.  The  judges  named  by  the  king  are  immovable. 


sented  to  by  the  king,  and  if  it  has  not  been  sent  back  and  discussed  by  the 
bureaux. 

47.  The  chamber  of  deputies  receives  all  propositions  of  taxes ;  only  after 
these  laws  have  been  consented  to,  they  may  be  carried  to  the  chamber  of  peers. 

*  Article  56  of  the  old  charter  is  suppressed ;  it  ran  thus  : 

They  cannot  be  accused  except  for  treason  or  peculation.  Particular  laws 
will  specify  this  kind  of  offences,  and  w^ill  determine  how  they  are  to  be  prose- 
cuted. 


552  ON  CIVIL  LIBERTY 

Art.  50.  The  ordinary  courts  and  tribunals  existing  are  to  be 
maintained,  and  there  is  to  be  no  change  but  by  virtue  of  a  law. 

Art.  51.  The  actual  institution  of  the  judges  of  commerce  is 
preserved. 

Art.  52.  The  office  of  justice  of  peace  is  equally  preserved. 
The  justices  of  peace,  though  named  by  the  king,  are  not  im- 
movable. 

Art.  53.  No  one  can  be  deprived  of  his  natural  judges. 

Art.  54.     There  cannot,  in  consequence,  be  extraordinary  com 
mittees  and  tribunals  created,  under  whatever  title  or  denomination 
this  ever  7night  be.^ 

Art.  55.  The  debates  will  be  public  in  criminal  matters,  at  least 
when  the  publicity  will  not  be  dangerous  to  order  and  decency,  and 
in  that  case  the  tribunal  is  to  declare  so  by  a  distinct  judgment. 

Art.  56.  The  institution  of  juries  is  to  be  preserved  ;  the  changes 
which  a  longer  experience  may  render  necessary  can  only  be  effected 
by  a  law. 

Art.  57.  The  punishment  of  confiscation  of  goods  is  abolished, 
and  cannot  be  re-established. 

Art.  58.  The  king  has  the  right  to  pardon  and  to  commute  the 
punishment. 

Art.  59.  The  civil  code,  and  the  actual  laws  existing  that  are 
not  contrary  to  the  present  charter,  will  remain  in  full  force  until 
they  shall  be  legally  abrogated. 

particular  rights  guaranteed  by  the  state. 

Art.  60.  The  military  in  actual  service,  retired  officers  and 
soldiers,  widows,  officers  and  soldiers  on  pension,  are  to  preserve 
their  grades,  honors  and  pensions. 

Art.  61.  The  public  debt  is  guaranteed.  Every  sort  of  engage- 
ment made  by  the  state  with  its  creditors  is  to  be  inviolable. 

Art.  62.  The  old  nobility  retake  their  titles.  The  new  preserve 
theirs.  The  king  creates  nobles  at  his  pleasure ;  but  he  only  grants 
to  them  rank  and  honors,  without  any  exemption  from  the  charges 
and  duties  of  society. 


*  Art.  63  of  the  old  charter : 

In  consequence  there  cannot  be  created  extraordinary  committees  and  tribu- 
nals. The  jurisdictions  prevotales,  if  their  re-establishment  should  be  found 
necessary,  are  not  comprised  under  this  denomination. 


AND  SELF-GOVERNMENT.  553 

Art.  (iT)-  The  legion  of  honor  is  to  be  maintained.  The  king 
shall  determine  its  internal  regulations  and  the  decorations. 

Art.  64.  The  colonies  are  to  be  governed  \>y particular  laws.' 

Art.  65.  The  king  and  his  successors  shall  swear,  at  their  acces- 
sion, in  presence  of  the  two  chambers,  to  observe  faithfully  the  present 
constitutional  charter. - 

Art.  66.  The  present  charter,  and  the  rights  it  consecrates,  shall 
be  intrusted  to  the  patriotism  and  courage  of  the  fiational  guard  and 
all  the  citizens. 

Art.  67.  France  resumes  her  colors.  For  the  future  there  will  be 
710  other  cockade  than  the  tri-colored  cockade.'^ 

Art.  68.  All  the  creations  of  peers  during  the  reign  of  Charles 
X.  are  declared  null  and  void. 

Article  23  of  the  charter  will  undergo  a  fresh  examination  during 
the  session  of  1831. 

Art.  69.  There  will  be  provided  successively  by  separate  laws, 
and  that  with  the  shortest  possible  delay,  for  the  following  subjects : 

I.  The  extension  of  the  trial  by  jury  to  offences  of  the  press, 
and  political  offences. 

•  2.  The  responsibility  of  ministers  and  the  secondary  agents  of 
government. 

3.  The  re-election  of  deputies  appointed  to  public  functions  with 
salaries. 

4.  The  annual  voting  of  the  army  estimates. 

5.  The  organization  of  the  national  guards  with  the  intervention 
of  the  national  guards  in  the  choice  of  their  officers. 

6.  Provisions  which  insure,  in  a  legal  manner,  the  state  of 
officers  of  each  grade,  by  land  and  sea. 


'  Art.  73  of  the  old  charter: 

The  colonies  will  be  governed  by  particular  laws  and  regulations. 
=  Art.  74  of  the  old  charter: 

The  king  and  his  successors  shall  swear  at  the  coronation,  to  observe  faithfully 
the  present  constitutional  charter. 

3  Arts.  75  and  76  of  the  old  charter  are  suppressed;  they  ran  thus: 

75.  The  deputies  of  the  departments  of  France  who  sat  in  the  legislative  body, 
at  the  last  adjournment,  will  continue  to  sit  in  the  chamber  of  deputies,  until 
replaced. 

76.  The  first  renewal  of  the  fifth  of  the  chamber  of  deputies  will  take  place 
the  latest  in  the  year  18 16,  according  to  the  order  established. 


554      ON  CIVIL  LIBERTY  AND  SELF-GOVERNMENT. 

7.  Departmental  and  municipal  institutions  founded  upon  an 
elective  system. 

8.  Public  instruction  and  the  liberty  of  instruction. 

9.  The  abolition  of  the  double  vote  \  the  settling  of  the  electoral 
conditions,  and  that  of  eligibility. 

Art.  70.  All  laws  and  ordinances,  inasmuch  as  they  are  contrary 
to  the  provisions  adopted  by  the  reform  of  the  charter,  are  from 
this  moment  annulled  and  abrogated. 

We  give  it  in  command  to  our  courts  and  tribunals,  administrative 
bodies,  and  all  others,  that  they  observe  and  maintain  the  present 
constitutional  charter,  cause  it  to  be  observed,  followed  and  main- 
tained, and  in  order  to  render  it  more  known  to  all,  they  cause  it 
to  be  published  in  all  municipalities  of  the  kingdom  and  every- 
where, where  it  will  be  necessary,  and  in  order  that  this  be  firm 
and  stable  forever,  we  have  caused  our  seal  to  be  put  to  it. 

Done  at  the  Palais-Royal,  at  Paris,  the  14th  day  of  the  month 
of  August,  in  the  year  1830. 

Signed  LOUIS   PHILIPPE. 

By  the  king : 

The  Minister  Secretary  of  the  State  for  the  department  of  the 
Interior. 

Signed  Guizot. 

Examined  and  sealed  with  the  great  seal : 

The  keeper  of  the  seals.  Minister  Secretary  of  the  State  for  the 
department  of  Justice. 

Signed  Dupont  (de  I'Eure) 


APPENDIX  XIII. 

CONSTITUTION   OF   THE   FRENCH   REPUBLIC. 

ADOPTED   NOVEMBER,    1848. 

In  presence  of  God,  and  in  the  name  of  the  French  people,  the 
National  Assembly  proclaims : 

I.  France  has  constituted  herself  a  republic.  In  adopting  that 
definite  form  of  government,  her  proposed  aim  is  to  advance  with 
greater  freedom  in  the  path  of  civilization  and  progress,  to  insure 
that  the  burdens  and  advantages  of  society  shall  be  more  and  more 
equitably  apportioned,  to  augment  the  comfort  of  every  individual 
by  the  gradual  reduction  of  the  public  expenses  and  taxes,  and  by 
the  successive  and  constant  action  of  her  institutions  and  laws 
cause  the  whole  body  of  citizens  to  attain,  without  farther  commo- 
tion, a  constantly  increasing  degree  of  morality,  intelligence,  and 
prosperity. 

II.  The  French  republic  is  democratic,  one  and  indivisible. 

III.  It  recognizes  rights  and  duties  anterior  and  superior  to  all 
positive  laws. 

IV.  Its  principles  are  Liberty,  Equality,  Fraternity. 

Its  basis  is.  Family,  Labor,  Property,  and  Public  Order. 

V.  It  respects  the  nationality  of  foreign  states,  as  it  causes  its 
own  to  be  respected.  It  undertakes  no  wars  with  a  view  of  con- 
quest, and  never  employs  its  power  against  the  liberty  of  any 
people. 

VI.  Reciprocal  duties  bind  the  citizens  to  the  republic  and  the 
republic  to  the  citizens. 

VII.  It  is  the  duty  of  the  citizens  to  love  their  country,  serve 
the  republic,  and  defend  it  at  the  hazard  of  their  lives ;  to  partici- 
pate in  the  expenses  of  the  state,  in  proportion  to  their  property , 
to  secure  to  themselves,  by  their  labor,  the  means  of  existence, 
and,  by  prudent  forethought,  provide  resources  for  the  future ;  to 
co-operate  for  the  common  welfare  by  fraternally  aiding  each  other, 

S55 


556  ON  CIVIL  LIBERTY 

and  in  the  preservation  of  general  order  by  observing  the  moral 
and  written  laws  which  regulate  society,  families,  and  individuals. 

VIII.  It  is  the  duty  of  the  republic  to  protect  the  citizen  in  his 
person,  his  family,  his  religion,  his  property,  and  his  labor,  and  to 
bring  within  the  reach  of  all  that  education  which  is  necessary  to 
every  man  ;  it  is  also  its  duty,  by  fraternal  assistance,  to  provide 
the  means  of  existence  to  necessitous  citizens,  either  by  procuring 
employment  for  them,  within  the  limits  of  its  resources,  or  by  giving 
relief  to  those  who  are  unable  to  work  and  who  have  no  relatives 
to  help  them. 

For  the  fulfilment  of  all  these  duties,  and  for  the  guarantee  of 
all  these  rights,  the  National  Assembly,  faithful  to  the  traditions  of 
the  great  Assemblies  by  whom  the  French  revolution  was  inaugu- 
rated, decrees  the  constitution  of  the  republic,  as  following: 


CONSTITUTION. 
CHAPTER   I. 

OF   SOVEREIGNTY. 

Art.  I.  The  sovereignty  exists  in  the  whole  body  of  French 
citizens.  It  is  inalienable  and  imprescriptible.  No  individual,  no 
fraction  of  the  people  can  arrogate  to  themselves  its  exercise. 

CHAPTER   II. 

RIGHTS   OF  CITIZENS   GUARANTEED   BY   THE  CONSTITUTION. 

Art.  2.  No  person  can  be  arrested  or  detained,  except  as  pre- 
scribed by  law. 

Art.  3.  The  dwelling  of  every  person  inhabiting  the  French 
territory  is  inviolable,  and  cannot  be  entered  except  according  to 
the  forms  and  in  the  cases  provided  against  by  law. 

Art.  4.  No  one  shall  be  removed  from  his  rightful  judges — no 
commissions  or  extraordinary  tribunals  can  be  created  under  any 
pretext,  or  by  any  denomination  whatsoever. 

Art.  5.  The  penalty  of  death  for  political  offences  is  abolished. 

Art.  6.  Slavery  cannot  exist  upon  any  French  territory. 

Art.  7.  Every  one  may  freely  profess  his  own  religion,  and  shall 
receive  from  the  state  equal  protection  in  the  exercise  of  his  wor- 


A  ND  SELF-  G  O  VERNMENT. 


557 


ship.  Tlie  ministers  of  the  reh'gions  at  present  recognized  by  law, 
as  well  as  those  which  may  be  hereafter  recognized,  have  the  right 
to  receive  an  allowance  from  the  state. 

Art.  8.  Citizens  have  the  right  of  associating  together  and 
assembling  peaceably  and  unarmed,  in  order  to  petition  or  manifest 
their  ideas  by  means  of  the  press  or  otherwise.  The  exercise  of 
these  rights  can  only  be  limited  by  the  rights  or  the  liberty  of 
others,  or  for  the  public  security.  The  press  cannot  in  any  case  be 
subjected  to  censorship. 

Art.  9.  Education  is  free.  The  liberty  of  teaching  is  to  be  ex- 
ercised according  to  the  capacity  and  morality  determined  by  con- 
ditions of  the  laws,  and  under  the  supervision  of  the  state.  This 
superintendence  is  to  be  extended  to  all  establishments  of  education 
and  instruction,  without  any  exception. 

Art  10.  All  citizens  are  equally  admissible  to  all  public  employ- 
ments, without  other  reason  of  preference  than  merit,  and  according 
to  the  conditions  to  be  determined  by  law.  All  titles  of  nobility, 
all  distinctions  of  birth,  class  or  caste,  are  abolished  forever. 

Art.  II.  All  descriptions  of  property  are  inviolable;  neverthe- 
less, the  state  may  demand  the  sacrifice  of  property  for  reasons  of 
public  utility,  legally  proved,  and  in  consideration  of  a  just  and 
previous  indemnity. 

Art.  12.  The  confiscation  of  property  can  never  be  re-estab- 
lished. 

Art.  13.  The  constitution  guarantees  to  citizens  the  freedom  of 
labor  and  of  industry.  Society  favors  and  encourages  the  develop- 
ment of  labor  by  gratuitous  primary  instruction,  by  professional 
education,  by  the  equality  of  rights  between  the  employer  and  the 
workman,  by  institutions  for  the  deposit  of  savings  and  those  of 
credit,  by  agricultural  institutions ;  by  voluntary  associations,  and 
the  establishment  by  the  state,  the  departments  and  the  communes, 
of  public  works  proper  for  the  employment  of  unoccupied  laborers. 
Society  also  will  give  aid  to  deserted  children,  to  the  sick,  and  to 
the  destitute  aged  who  are  without  relatives  to  support  them. 

Art.  14.  The  public  debt  is  guaranteed.  Every  species  of  en- 
gagement made  by  the  state  with  its  creditors  is  inviolable. 

Art.  15.  All  taxes  are  imposed  for  the  common  good.  Every 
one  is  to  contribute  in  proportion  to  his  means  and  fortune. 

Art.  1 6.  No  tax  can  be  levied  or  collected  except  by  virtue  of 
the  law. 


558  ON  CIVIL  LIBERTY 

Art.  17.  Direct  taxation  is  only  awarded  for  one  year.  Indirect 
taxes  may  be  awarded  for  several  years. 

CHAPTER  III. 

OF   PUBLIC   POWER. 

Art.  18.  All  public  powers,  whatever  they  may  be,  emanate  from 
the  people.     They  cannot  be  delegated  by  hereditary  descent. 

Art.  19.  The  separation  of  powers  is  the  first  principle  of  a  free 
government. 

CHAPTER  IV. 

OF  THE  LEGISLATIVE   POWER. 

Art.  20.  The  French  people  delegate  the  legislative  power  to 
one  sole  assembly. 

Art.  21.  The  total  number  of  representatives  of  the  people  shall 
be  750,  including  the  representatives  from  Algeria  and  the  French 
colonies. 

Art.  22.  This  number  shall  be  increased  to  900  for  assemblies 
called  together  to  revise  the  constitution. 

Art.  23.  Population  is  the  basis  for  election. 

Art.  24.  Suffrage  is  direct  and  universal.  The  act  of  voting  is 
by  secret  ballot. 

Art.  25.  All  Frenchmen  aged  twenty-one,  and  in  the  enjoyment 
of  their  civil  and  political  rights,  are  electors,  without  property 
qualifications  of  any  kind. 

Art.  26.  All  electors  are  eligible  to  be  elected  without  reference 
to  property  qualifications  or  to  place  of  abode,  who  are  twenty-five 
years  of  age. 

Art.  27.  The  electoral  law  will  determine  the  causes  which  may 
deprive  a  French  citizen  of  the  right  of  electing  or  being  elected. 
It  will  designate  those  citizens  who,  exercising  or  after  having 
exercised  official  functions  in  a  department  or  territory,  cannot  be 
elected  there. 

Art.  28.  The  holding  of  any  remunerating  public  office  is  incom- 
patible with  the  trust  of  a  representative  of  the  people.  No  member 
of  the  national  assembly  can  be  nominated  or  raised  to  public 
offices,  receiving  salary,  the  appointment  to  which  is  in  the  gift  of 
the  executive,  during  the  continuance  of  the  legislature.  Excep- 
tions to  the  regulations  contained  in  the  two  preceding  paragraphs 
are  to  be  settled  by  th;  organic  electoral  law. 


A i\D  SELF-  G  O  VERiXMENT. 


559 


Art.  29.  The  conditions  of  the  preceding  articles  are  not  appli- 
cable to  assemblies  elected  for  the  revision  of  the  constitution. 

Art.  30.  The  elections  for  representatives  shall  be  by  depart- 
ments, and  by  ballot.  The  electors  shall  vote  at  the  chief  place 
of  their  district;  nevertheless  the  district  maybe,  from  local  causes, 
divided  into  several  subdivisions,  under  the  forms  and  in  conformity 
with  the  conditions  to  be  determined  by  the  electoral  law. 

Art.  31.  The  national  assembly  is  elected  for  the  period  of  three 
years,  to  be  then  wholly  renewed.  Forty-five  days  at  least  before 
the  term  of  the  legislature,  a  law  shall  be  passed  to  fix  the  period 
of  the  new  elections.  If  no  law  is  passed  within  the  time  prescribed 
by  the  preceding  paragraph,  the  electors  shall  have  full  right  to 
assemble  and  vote  on  the  thirtieth  day  preceding  the  close  of  the 
legislature.  The  new  assembly  is  convoked  by  full  right  for  the 
day  following  that  on  which  the  trust  of  the  preceding  assembly 
expires. 

Art.  32.  The  assembly  is  permanent ;  nevertheless  it  may  ad- 
journ to  any  period  which  it  shall  determine.  During  the  con- 
tinuance of  the  prorogation,  a  commission,  composed  of  members 
of  committees,  and  twenty-five  representatives  appointed  by  the 
assembly,  by  ballot,  having  an  absolute  majority,  will  have  the 
right  to  convoke  the  assembly,  in  cases  of  emergency.  The  presi- 
dent of  the  republic  has  also  the  right  to  convoke  the  assembly. 
The  national  assembly  will  determine  the  place  where  it  shall  hold 
its  sessions,  and  will  direct  the  number  and  description  of  the  mili- 
tary forces  which  shall  be  appointed  for  its  security,  and  have  them 
at  its  order. 

Art.  33.  Representatives  may  be  re-elected. 

Art.  34.  The  members  of  the  national  assembly  are  the  repre- 
sentatives, not  of  the  department  which  nominates  them,  but  of  the 
whole  of  France. 

Art.  35.  They  cannot  receive  imperative  instructions. 

Art.  36.  The  persons  of  the  representatives  of  the  people  are 
mviolable.  They  cannot  be  pursued,  accused,  nor  condemned,  at 
any  time,  for  opinions  uttered  within  the  assembly. 

Art.  37.  They  cannot  be  arrested  for  criminal  offences,  except- 
ing when  taken  in  the  very  fact,  nor  prosecuted,  until  after  permis- 
sion granted  for  such  purpose  by  the  assembly.  In  case  of  an 
arrest  in  the  very  fact,  the  matter  shall  immediately  be  referred  to 
the  assembly,  which  shall  authorize  or  refuse  the  continuation  of 


560  O.V  CIVIL  LIBERTY 

the  prosecution.  The  above  regulation  to  apply  also  to  the  case 
of  citizens  imprisoned  at  the  time  of  being  named  representatives. 

Art.  38.  Every  representative  of  the  people  is  to  receive  a 
remuneration,  which  he  is  not  at  liberty  to  renounce. 

Art.  39.  The  sittings  of  the  assembly  are  to  be  public.  Never- 
theless, the  assembly  may  form  itself  into  a  secret  committee,  on  the 
requisition  of  a  number  of  representatives,  as  settled  by  the  rules. 
Each  representative  has  the  right  of  initiating  parliamentary  meas- 
ures, which  he  will  do  according  to  the  forms  determined  by  the 
regulations. 

Art.  40.  The  presence  of  half  the  members,  and  also  one  over, 
is  necessary  to  vote  on  any  law. 

Art.  41.  No  bill  (except  in  cases  of  urgency)  shall  be  passed 
till  after  it  has  undergone  three  readings,  at  intervals  of  not  less 
than  five  days  between  each  reading. 

Art.  42.  Every  proposition,  the  object  of  which  is  to  declare 
the  urgency  of  a  measure,  must  be  preceded  by  an  explanation  of 
motives.  If  the  assembly  is  of  opinion  to  accede  to  the  proposi- 
tion, it  will  fix  the  time  when  the  report  upon  the  necessity  of  the 
case  shall  be  represented.  On  this  report,  if  the  assembly  admit 
the  urgency  of  the  case,  it  will  declare  it,  and  fix  the  time  of  the 
debate.  If  it  decides  against  the  urgency  of  the  case,  the  motion 
will  have  to  go  through  the  usual  course. 

CHAPTER  V. 

OF   THE   EXECUTIVE  POWER. 

Art.  43.  The  French  people  delegates  the  executive  power  to  a 
citizen,  who  shall  receive  the  title  of  president  of  the  republic. 

Art.  44.  The  president  must  be  born  a  Frenchman,  thirty  years 
of  age  at  least,  and  must  never  have  lost  the  quality  of  Frenchman. 

Art.  45.  The  president  of  the  republic  shall  be  elected  for  four 
years,  and  shall  not  be  eligible  for  re-election  until  after  an  interval 
of  four  years.  Neither  shall  the  vice-president,  nor  any  of  his  rela- 
tions or  kindred  of  the  president,  to  the  sixth  degree  inclusive,  be 
eligible  for  re-election  after  him,  within  the  same  interval  of  time. 

Art.  46.  The  election  shall  take  place  on  the  second  Sunday  in 
the  month  of  May.  If,  in  the  event  of  death  or  resignation,  or 
from  any  other  cause,  a  president  be  elected  at  any  other  period, 
his  power  shall  expire  on  the  second  Sunday  of  the  month  of  May? 


AND  SELF-GOVERNMENT.  561 

in  the  fourth  year  following  his  election.  The  president  shall  be 
elected  by  secret  ballot,  and  by  an  absolute  majority  of  votes,  by 
the  direct  suffrage  of  all  the  electors  of  the  French  departments  and 
of  Algeria. 

Art.  47.  The  records  of  the  electoral  operations  shall  be  trans- 
mitted immediately  to  the  national  assembly,  which  shall  determine 
without  delay  upon  the  validity  of  the  election,  and  shall  proclaim 
the  president  of  the  republic.  If  no  candidate  shall  have  obtained 
more  than  one-half  of  the  votes  given,  and  at  the  least  two  millions 
of  votes,  or  if  the  conditions  required  by  article  44  are  not  fulfilled, 
the  national  assembly  shall  elect  the  president  of  the  republic  by  an 
absolute  majority,  and  by  ballot,  from  among  the  five  candidates 
eligible  who  shall  have  obtained  the  greatest  number  of  votes. 

Art.  48.  Before  entering  upon  Itis  functions,  the  president  of 
the  republic  shall,  in  the  presence  of  the  assembly,  take  an  oath  of 
the  tenor  following  :  "In  presence  of  God,  and  before  the  French 
people,  represented  by  the  national  assembly,  I  swear  to  remain 
faithful  to  the  democratic  republic,  one  and  indivisible,  and  to  fulfil 
all  the  duties  which  the  constitution  imposes  upon  me." 

Art.  49.  He  shall  have  the  right  of  presenting  bills  through  the 
ministers  in  the  national  assembly.  He  shall  watch  over  and  secure 
the  execution  of  the  laws. 

Art.  50.  He  shall  have  the  disposal  of  the  armed  force,  without 
ever  being  allowed  to  command  it  in  person. 

Art.  51.  He  cannot  cede  any  portion  of  the  territory,  nor  dis- 
solve or  prorogue  the  national  assembly,  nor  suspend  the  operation 
of  the  constitution  and  the  laws. 

Art.  52.  He  shall  annually  present,  by  a  message  to  the  national 
assembly,  an  exposition  of  the  general  state  of  the  affairs  of  the 
republic. 

Art.  53.  He  shall  negotiate  and  ratify  treaties.  No  treaty 
shall  be  definitive  until  after  it  has  been  approved  by  the  national 
assembly. 

Art.  54.  He  shall  watch  over  the  defence  of  the  state,  but  he 
shall  not  undertake  any  war  without  the  consent  of  the  national 
assembly. 

Art.  55.  He  shall  possess  the  right  of  pardon  ;  but  he  shall 
not  have  the  power  to  exercise  this  right  until  after  he  has  taken 
the  advice  of  the  council  of  state.  Amnesties  shall  only  be  granted 
by  an  express  law.     The  president  of  the  republic,  the  ministers, 

36 


562  ON  CIVIL  LIBERTY 

as  well  as  all  other  persons  condemned  by  the  high  court  of  justice, 
can  only  be  pardoned  by  the  national  assembly. 

Art.  56.  The  president  of  the  republic  shall  promulgate  the  laws 
in  the  name  of  the  French  people. 

Art.  57.  Laws  of  emergency  shall  be  promulgated  three  days 
after,  and  other  laws  one  month  after  their  passing,  counting  from 
the  day  on  which  they  were  passed  by  the  national  assembly. 

Art.  58.  Previous  to  the  day  fixed  for  the  promulgation,  the 
president  may,  by  a  message  assigning  reasons  therefor,  demand  a 
reconsideration  of  the  law.  The  assembly  shall  then  reconsider  it, 
its  resolution  becomes  definitive,  and  shall  be  tr.ansmitted  to  the 
president  of  the  republic.  In  such  a  case,  the  promulgation  shall 
be  made  within  the  delay  allowed  to  laws  of  emergency. 

Art.  59.  In  default  of  the 'promulgation  of  laws  by  the  presi- 
dent, within  the  period  fixed  by  the  preceding  articles,  the  presi- 
dent of  the  assembly  shall  provide  for  their  due  promulgation. 

Art.  60.  The  credentials  of  envoys  and  ambassadors  from  for- 
eign powers  shall  be  addressed  to  the  president  of  the  republic. 

Art.  61.  He  shall  preside  at  all  national  solemnities. 

Art.  62.  He  shall  be  furnished  with  a  residence  at  the  expense 
of  the  republic,  and  shall  receive  an  allowance  of  six  hundred 
thousand  francs  per  annum. 

Art.  63.  He  shall  reside  in  the  place  in  which  the  national  as- 
sembly holds  its  sessions,  and  may  not  leave  the  continental  terri- 
tory of  the  republic  without  being  authorized  by  law  so  to  do. 

Art.  64.  The  president  of  the  republic  shall  have  power  to 
appoint  and  revoke  the  appointment  of  the  ministers.  He  shall 
appoint  and  revoke,  in  a  council  of  ministers,  the  diplomatic  agents, 
commanders-in-chief  of  the  armies  of  the  republic  by  sea  and  land, 
prefects  and  the  chief  commandant  of  the  national  guards  of  the 
Seine,  the  governors  of  Algeria  and  the  other  colonies,  the  attorney- 
general  and  all  other  functionaries  of  superior  rank.  He  shall  ap- 
point and  dismiss,  at  the  suggestion  of  the  competent  minister,  ac- 
cording to  the  terms  and  conditions  fixed  by  law,  all  other  officers 
and  functionaries  of  the  government  of  secondary  rank. 

Art.  65.  He  shall  have  the  right  of  suspending,  for  a  period  not 
exceeding  three  months,  the  agents  of  the  executive  power  elected 
by  the  people.  He  shall  not  be  able  to  dismiss  them  unless  by  the 
advice  of  the  council  of  the  state.  The  law  will  determine  the 
case  in  which  agents,  having  been  dismissed,  may  be  declared  not 


AND  SELF-GOVERNMENT.  563 

to  be  eligible  again  for  the  same  office.  Such  a  declaration  of  in- 
eligibility can  only  be  pronounced  by  a  formal  judgment. 

Art.  6(>.  The  number  of  ministers  and  their  several  powers, 
duties  and  emoluments  shall  be  settled  by  the  legislative  power. 

Art.  67.  The  acts  of  the  president,  excepting  those  by  which  he 
appoints  or  dismisses  the  ministers  of  the  republic,  shall  be  of  no 
effect,  unless  countersigned  by  a  minister. 

Art.  68.  The  president  of  the  republic,  the  ministers,  the  agents, 
and  all  the  other  depositaries  of  public  authority,  shall  be  respon- 
sible, each  in  so  far  as  he  is  concerned,  for  all  the  acts  of  the  gov- 
ernment and  of  the  administration.  Every  measure  by  which  the 
president  of  the  republic  shall  dissolve  or  prorogue  the  assembly, 
or  interpose  any  obstacle  to  the  exercise  of  its  public  trust,  shall  be 
deemed  a  crime  of  high  treason.  By  this  sole  act,  the  president 
becomes  divested  of  his  functions,  and  the  people  are  bound  not  to 
yield  obedience  to  him;  the  executive  power  is  thereby  transferred 
in  full  authority  to  the  national  assembly.  The  judges  of  the 
high  court  of  justice  shall  immediately  assemble,  on  pain  of  for- 
feiture of  their  offices.  They  shall  call  together  a  jury,  in  some 
place  to  be  by  them  designated,  in  order  to  proceed  to  trial  and 
judgment  upon  the  president  and  his  accomplices ;  and  they  shall 
themselves  appoint  a  magistrate  to  be  charged  with  the  functions 
of  state  attorney.  A  law  shall  determine  the  other  cases  of  re- 
sponsibility, as  well  as  the  forms  and  conditions  of  the  prosecution 
of  them. 

Art.  69.  The  ministers  shall  have  admission  into  the  national 
assembly,  and  shall  be  heard  whenever  they  require  it,  and  they 
may  also  obtain  the  assistance  of  commissioners,  who  shall  have 
been  appointed  by  a  decree  of  the  president  of  the  republic. 

Art.  70.  There  shall  be  a  vice-president  of  the  republic,  to  be 
appointed  by  the  national  assembly,  from  a  list  of  three  candidates 
presented  by  the  president  within  the  month  succeeding  his  elec- 
tion. The  vice-president  shall  take  the  same  oath  as  the  president. 
The  vice-president  shall  not  be  appointed  from  among  the  relations 
or  kindred  of  the  president  to  the  sixth  degree  inclusive.  Should 
the  president  by  any  cause  be  prevented  from  officiating,  the  vice- 
president  will  represent  him  for  the  time  being.  If  the  presidency 
shall  become  vacant  by  the  death  of  the  president,  his  dismissal 
from  office,  or  from  other  causes,  a  new  election  for  president  shall 
take  place  within  a  month. 


564  ON  CIVIL  LIBERTY 

CHAPTER    VI. 

OF  THE   COUNCIL   OF  STATE. 

Art.  71.  There  shall  be  a  council  of  state,  of  which  the  vice- 
president  of  the  republic  shall  of  right  be  the  president. 

Art.  72.  The  members  of  this  council  shall  be  appointed  for  six 
years  by  the  national  assembly.  The  half  of  this  council  shall  be 
renewed  in  the  first  two  months  of  each  new  legislature,  by  secret 
ballot,  and  by  an  absolute  majority.  They  shall  be  indefinitely 
re-eligible. 

Art.  73.  Such  of  the  members  of  the  council  of  state,  who  shall 
have  been  appointed  from  among  the  members  of  the  assembly, 
shall  be  immediately  replaced  as  representatives  of  the  people. 

Art.  74.  The  members  of  the  council  of  state  cannot  be  dis- 
missed, except  by  the  national  assembly  and  at  the  suggestion  of 
the  president. 

Art.  75.  The  council  of  state  shall  be  consulted  upon  all  bills 
or  laws  proposed  by  the  government,  which,  according  to  law,  must 
be  presented  for  their  previous  examination  \  and  also  upon  parlia- 
mentary bills  which  the  assembly  may  send  to  them  for  their  exami- 
nation. It  shall  prepare  the  rules  of  public  administration,  and 
will  alone  make  those  regulations  with  regard  to  which  the  national 
assembly  have  given  it  a  special  delegation.  It  shall  exercise  over 
the  public  administrations  all  the  powers  of  control  and  of  super- 
intendence which  are  conferred  upon  it  by  law.  The  law  will 
determine  the  other  powers  and  duties  of  the  council. 

CHAPTER   Vn. 

OF   THE   INTERIOR    ADMINISTRATION. 

Art.  76.  The  division  of  the  territory  into  departments,  arron- 
dissements,  districts  and  communes  shall  be  maintained.  Their 
present  limits  shall  not  be  changed,  except  by  law. 

Art.  77.  There  shall  be — i.  In  each  department  an  adminis- 
tration composed  of  a  prefect,  a  general  council,  and  a  council  of 
prefecture.  2.  In  each  arrondissement,  a  sub-prefect.  3.  In  each 
district,  a  district-council ;  nevertheless,  only  a  single  district- 
council  shall  be  established  in  any  city  which  is  divided  into  several 
districts.  4.  In  each  commune,  an  administration,  composed 
of  a  mayor,  his  assistants,  and  a  municipal  council. 


AND  ^ELF-GO  VERXMEXT.  565 

Art.  78.  A  law  shall  determine  the  composition  and  duties  of 
the  general  councils,  the  district  councils,  and  the  municipal  coun- 
cils, as  well  as,  also,  the  manner  of  appointing  the  mayors  and  their 
assistants. 

Art.  79.  The  general  councils  and  the  municipal  councils  shall 
be  elected  by  the  direct  vote  of  all  citizens  living  in  the  depart- 
ment or  district :  each  district  shall  elect  one  member  of  the  gen- 
eral council ;  a  special  law  shall  regulate  the  forms  of  election  in 
the  department  of  the  Seine,  in  the  city  of  Paris,  and  in  cities 
containing  a  population  of  more  than  twenty  thousand  souls. 

Art.  80.  The  general  councils,  the  district  councils,  and  the 
municipal  councils  may  be  dissolved  by  the  president  of  the  repub- 
lic, with  the  advice  of  the  council  of  state;  the  law  will  fix  the 
period  within  which  a  new  election  shall  be  held. 

CHAPTER   VIII. 

OF   THE  JUDICIARY    POWER. 

Art.  81.  Justice  shall  be  awarded,  gratuitously,  in  the  name  of 
the  French  people.  The  proceedings  shall  be  public,  except  in 
cases  where  publicity  may  be  detrimental  either  to  the  public  order 
or  public  morals,  in  which  case  the  court  shall  declare  the  same  by 
a  formal  judgment. 

Art.  82.  Trial  by  jury  shall  be  continued  in  criminal  cases. 

Art.  83.  The  decision  upon  all  political  offences,  and  upon  all 
offences  committed  by  means  of  the  press,  appertains  exclusively  to 
the  jury.  The  organic  laws  shall  determine  the  tribunal  and  powers 
in  relation  to  offences  and  defamation  against  private  individuals. 

Art.  84.  The  jury  alone  shall  decide  upon  the  question  of 
damages  claimed  on  account  of  offences  by  the  press. 

Art.  85.  The  justices  of  peace  and  their  assistants,  the  judges  of 
the  first  instance  and  of  appeal,  the  members  of  the  court  of  cassa- 
tion and  of  the  court  of  accounts,  shall  be  appointed  by  the  presi- 
dent of  the  republic,  according  to  a  system  of  candidateship  on 
conditions  which  shall  be  regulated  by  the  organic  laws. 

Art.  86.  The  magistrates  shall  be  appointed  by  the  president  of 
the  republic. 

Art.  87.  The  judges  of  the  first  instance  and  of  appeal,  the 
members  of  the  court  of  cassation  and  of  the  court  of  accounts 
shall  be  appointed  for  life.     They  shall  not  be  dismissed  or  sus- 


566 


ON  CIVIL  LIBERTY 


pended,  except  after  judgment,  nor  retire  with  a  pension,  except 
for  causes  and  according  to  proceedings  appointed  by  law. 

Art.  88.  The  councils  of  war  and  of  revision  of  the  armies  by 
sea  and  land,  the  maritime  tribunals,  the  tribunals  of  commerce, 
the  priid^ hommes ,  and  other  special  tribunals,  shall  retain  their 
present  organization  and  their  present  functions,  until  the  law  shall 
decide  otherwise. 

Art.  89.  Conflicts  of  privileges  and  duties  between  the  adminis- 
trative and  the  judicial  authority  shall  be  regulated  by  a  special 
tribunal,  composed  of  members  of  the  court  of  cassation  and  of 
counsellors  of  state,  to  be  appointed,  every  three  years,  in  equal 
number,  by  the  respective  bodies  to  which  they  belong.  This 
♦ribunal  shall  be  presided  over  by  the  minister  of  justice. 

Art.  90.  Appeals  for  incompetence,  or  excess  of  power  against 
the  decrees  of  the  court  of  accounts,  shall  be  carried  before  the 
tribunal  of  conflictive  jurisdiction. 

Art.  91.  A  high  court  of  justice  shall  decide,  without  appeal, 
demur,  or  recourse  of  annulment,  in  all  accusations  made  by  the 
national  assembly  against  the  president  of  the  republic  or  the 
ministers.  It  shall  likewise,  in  the  same  way,  try  all  cases  of  per- 
sons accused  of  crimes,  attempts,  or  plots  against  the  internal  and 
external  safety  of  the  state,  which  the  assembly  may  have  sent  be- 
fore it.  Except  in  the  case  provided  for  in  article  68,  it  shall  not 
be  called  together  unless  by  decree  of  the  national  assembly,  which 
shall  also  designate  the  city  in  which  the  court  shall  hold  its  sittings. 

Art.  92.  The  high  court  shall  be  composed  of  five  judges  and 
of  thirty-six  jurymen.  Every  year,  in  the  first  fifteen  days  of  the 
month  of  November,  the  court  of  cassation  shall  appoint  from 
among  its  members,  by  secret  ballot  and  an  absolute  majority,  the 
judges  of  the  high  court,  the  number  to  be  five  judges  and  two 
supplementary  judges.  The  five  judges,  who  are  thus  called  upon 
to  sit,  will  themselves  select  their  president.  The  magistrates  per- 
forming the  functions  of  the  public  ministry  shall  be  designated  by 
the  president  of  the  republic,  and,  in  the  event  of  the  accusation 
of  the  president  or  his  ministers,  by  the  national  assembly.  The 
jury,  to  the  number  of  thirty-six,  and  four  supplementary  jurymen, 
shall  be  taken  from  among  the  members  of  the  general  councils  of 
the  departments.  Representatives  of  the  people  shall  not  be  com- 
petent to  form  part  of  these  juries. 

Art.   93.  When  a  decree  of  the  national  assembly  shall  have 


AND  SELF-GOVERNMENT.  567 

ordered  the  formation  of  the  high  court  of  justice,  as  also  in  the 
cases  provided  for  in  the  68th  article,  on  the  requisition  of  the 
president  or  of  one  of  the  judges,  the  president  of  the  court  of 
appeal,  and  in  default  of  that  court,  the  president  of  the  tribunal 
of  the  first  instance  of  the  chief  judiciary  court  of  the  department, 
shall  draw  lots  in  public  assembly  for  the  name  of  a  member  of  the 
general  council. 

Art.  94.  On  the  day  appointed  for  the  trial,  if  there  are  less  than 
sixty  jurymen  present,  the  number  shall  be  filled  up  by  supple- 
mentary jurymen,  drawn  by  lot  by  the  president  of  the  high  court 
of  justice,  from  among  the  names  of  the  members  of  the  general 
council  of  the  department  in  which  the  court  holds  its  sitting. 

Art.  95.  Those  jurymen  who  shall  not  have  given  an  adequate 
excuse  for  absence,  shall  be  condemned  to  a  fine  of  not  less  than 
one  thousand  francs,  and  not  exceeding  ten  thousand,  and  to  be 
deprived  of  their  political  rights  during  five  years  at  the  utmost. 

Art.  96.  Both  the  accused  and  the  public  accuser  shall  have  the 
right  to  challenge,  as  in  ordinary  cases. 

Art.  97.  The  verdict  of  the  jury  pronouncing  the  accused  guilty 
cannot  be  rendered  except  by  a  majority  of  two-thirds. 

Art.  98.  In  all  cases  regarding  the  responsibility  of  the  minis- 
ters, the  national  assembly  may,  according  to  the  circumstances, 
send  the  accused  minister  to  be  tried  either  before  the  high  court 
of  justice  or  by  the  ordinary  tribunals  for  civil  indemnities  (or 
damages). 

Art.  99.  The  national  assembly  and  the  president  of  the  repub- 
lic may,  in  all  cases,  transmit  the  examination  of  the  acts  of  any 
functionary  (except  of  the  president  himself)  to  the  council  of  state, 
whose  report  shall  be  made  public. 

Art.  100.  The  president  of  the  republic  can  only  be  brought  to 
trial  before  the  high  court  of  justice.  Except  as  is  provided  for 
by  article  68,  he  cannot  be  tried  unless  upon  accusation  brought 
against  him  by  the  national  assembly,  and  for  crimes  and  misde- 
meanors, which  shall  be  determined  by  law. 

CHAPTER   IX. 

OF  THE  PUBLIC   FORCES. 

Art.  ioi.  The  public  force  is  instituted  for  the  purpose  of  de- 
fending the  state  against  enemies  from  without,  and  to  insure. 


568  ON  CIVIL  LIBERTY 

internally,  the  maintenance  of  order,  and  the  execution  of  the  laws. 
It  is  composed  of  the  national  guard  and  of  the  army  by  sea  and 
by  land. 

Art.  I02.  Every  Frenchman,  save  in  exceptions  determined  by 
the  law,  owes  to  his  country  his  services  in  the  army  and  in  the 
national  guard.  The  privilege  of  every  citizen  to  free  himself  from 
personal  military  service  shall  be  regulated  by  the  law  of  recruit- 
ment. 

Art.  103.  The  organization  of  the  national  guard,  and  the  con- 
stitution of  the  army,  shall  be  regulated  by  law. 

Art.  104.  The  public  force  is  essentially  obedient.  No  armed 
force  can  deliberate. 

Art.  105.  The  public  force  employed  to  maintain  order  in  the 
interior  can  only  act  upon  the  requisition  of  the  constituted  au- 
thorities, according  to  the  regulations  prescribed  by  the  legislative 
power. 

Art.  106.  A  law  shall  determine  those  cases  in  which  the  state 
of  siege  shall  be  declared,  and  shall  regulate  the  forms  and  deter- 
mine the  effects  of  such  a  measure. 

Art.  107.  No  foreign  troops  can  be  introduced  into  the  French 
territory  without  the  previous  assent  of  the  national  assembly. 

CHAPTER  X. 

SPECIAL  REGULATIONS. 

Art.  108.  The  legion  of  honor  is  maintained;  its  statutes  shall 
be  revised,  and  made  to  accord  with  the  constitution. 

Art.  109.  The  territory  of  Algeria,  and  of  the  colonies,  is  de- 
clared to  be  French  territory,  and  shall  be  governed  by  their  sepa- 
rate laws  until  a  special  law  shall  place  them  under  the  provisions 
of  the  present  constitution. 

Art.  lie.  The  national  assembly  confides  the  trust  of  this  pres- 
ent constitution,  and  the  rights  it  consecrates,  to  the  guardianship 
and  patriotism  of  every  Frenchman. 

CHAPTER  XI. 

OF  THE   REVISION   OF  THE  CONSTITUTION. 

Art.  III.  Whenever,  in  the  last  year  of  a  legislature,  the 
national  assembly  shall  have  expressed  the  wish  that  the  constitu- 


A. YD  SELF-  C O  VERNMENT. 


569 


tion  should  be  modified,  in  whole  or  in  part,  this  revision  shall  be 
entered  upon  in  the  following  manner :  The  wish  expressed  by  the 
assembly  shall  not  be  converted  into  a  definitive  resolution  until 
after  three  successive  deliberations  held  upon  the  subject,  at  the 
interval  of  one  month  between  each  deliberation,  and  the  measure 
shall  only  be  carried  by  a  vote  of  three-fourths  of  the  assembly. 
The  number  of  votes  must  be  five  hundred  at  the  least.  The 
assembly  for  revision  shall  only  be  appointed  for  three  months.  It 
shall  only  engage  in  the  special  revision  for  which  it  has  been 
assembled ;  nevertheless,  in  cases  of  emergency,  it  may  provide  for 
legislative  necessities. 

CHAPTER   XII. 

TRANSITORY  ARRANGEMENTS. 

Art.  112.  The  provisions  of  the  codes,  laws,  and  regulations, 
now  in  force,  and  which  are  not  in  contradiction  with  the  present 
constitution,  shall  remain  in  force  until  otherwise  provided  by  law. 

Art.  113.  All  the  authorities  constituted  by  the  present  laws 
shall  continue  in  the  exercise  of  their  present  duties  until  the 
promulgation  of  the  organic  laws  which  relate  to  them. 

Art.  114.  The  law  of  judiciary  organization  will  determine  the 
particular  mode  for  the  appointment  and  first  composition  of  the 
new  tribunals. 

Art.  115.  After  the  vote  upon  the  constitution,  the  constituent 
national  assembly  shall  proceed  to  draw  up  the  organic  laws,  which 
shall  be  determined  by  a  special  law  for  that  purpose. 

Art.  116.  The  first  election  of  a  president  of  the  republic  shall 
take  place  in  conformity  with  the  special  law  passed  by  the  national 
assembly  on  the  28th  of  October,  1848. 


APPENDIX  XIV. 

THE   PRESENT  CONSTITUTION   OF   FRANCE. 

When  I  wrote  the  article  Constitution  for  the  Encyclopaedia 
Americana,  which  was  before  the  French  revolution  of  1830,  I 
classed  constitutions  under  three  general  heads:  i.  Those  estab- 
lished by  the  sovereign  power,  real  or  so  called.  These  were  sub- 
divided into  constitutions  established  by  a  sovereign  people  for 
their  own  government,  as  ours  are  ;  and  into  such  as  are  granted, 
theoretically  at  least,  by  the  plenary  power  of  an  absolute  monarch  ; 
such  as  the  then  existing  French  charter  was,  a  fundamental  law 
called  by  the  French  octroyed.  2.  Constitutions  formed  by  con- 
tracts between  nations  and  certain  individuals  whom  they  accept  as 
rulers  on  distinct  conditions.  3.  Constitutions  forming  a  compact 
between  a  number  of  states.  The  present  constitution  of  France 
is  not  included  in  either  of  these  classes.  Its  genesis,  as  the  reader 
well  knows,  was  that,  first,  an  individual  acquired  absolute  power 
by  a  conspiracy  or  coup  d'etat,  then  caused  the  people  to  vote 
whether  they  would  grant  him  plenary  power  to  prescribe  a  consti- 
tution ;  he  received  the  power  by  above  seven  millions  of  votes,  and 
issued  the  following  document,  copied  from  the  constitution  which 
Napoleon  the  First  had  prescribed  at  the  beginning  of  this  century. 
If,  then,  the  reader  insists  upon  calling  this  a  constitution — we  cer- 
tainly do  not  call  France  at  present  a  constitutional  country — we 
may  call  it  a  constitution  per  saltum,  for  it  was  in  former  times  one 
of  the  different  ways  of  electing  a  pope,  or  the  head  of  a  great 
society,  such  as  the  Templars,  to  elect  one  individual  with  the  right 
of  appointing  the  chief,  and  this  was  called  electing  per  saltum,  by 
a  leap.  I  also  divided  constitutions  into  cumulative  constitutions, 
such  as  the  constitution  of  England,  or  that  of  ancient  Rome,  and 
into  enacted  (or  written)  constitutions,  such  as  ours  are.  The 
present  constitution  of  France  can  again  be  classed  neither  under 
the  one  nor  the  other  head.  It  may,  perhaps,  be  called  decreed, 
or  by  any  name  the  reader  prefers.  It  is  difficult  to  find  an  appro- 
570 


ON  CIVIL  LIBERTY  AND  SELF-GOVERNMENT.     5^1 

priate  name  for  a  thing  which  is  the  result  of  a  confused  mixture  of 
ideas,  of  absolutism,  popular  sovereignty,  violence,  of  breaking  of 
oaths  and  prescribing  of  others,  of  coup  d'etat,  and  ratification  by 
those  whose  work  was  destroyed  by  the  soldiery,  and  by  the  idea 
of  the  "incarnation"  of  popular  absolute  power  in  one  person. 
Louis  Napoleon  has  been  called  the  incarnation  of  a  great  principle, 
I  do  not  pretend  to  find  a  philosophical  name  for  this  product. 
Probably  the  whole  constitution  belongs  to  the  "  Napoleonic 
ideas,"  of  which  we  read  so  much  at  this  moment ;  or  we  may  call 
it  in  future  an  imperatorial  or  Caesarean  constitution. 

The  following,  then,  is  the  present  French  Constitution,  as  it 
appeared  in  the  official  paper,  the  Moniteur,  of  January  15,  1S52, 
preceded  by  the  proclamation  of  Louis  Napoleon. 

LOUIS  NAPOLEON, 

PRESIDENT    OF    THE    REPUBLIC. 

In  the  name  of  the  French  People.^ 

Frenchmen  !  When,  in  my  proclamation  of  the  2d  of  December, 
I  stated  to  you  in  all  sincerity  what  were,  according  to  my  ideas, 
the  vital  conditions  of  government  in  France,  I  had  not  the  preten- 
sion, so  common  in  our  days,  of  substituting  a  personal  theory  for 
the  experience  of  ages.  On  the  contrary,  I  sought  in  the  past  what 
were  the  best  examples  to  follow,  what  men  had  given  them,  and 
what  benefit  had  resulted  therefrom. 

Having  done  so,  I  considered  it  only  logical  to  prefer  the  pre- 
cepts of  genius  to  the  specious  doctrines  of  men  of  abstract  ideas. 
I  took  as  model  the  political  institutions  which  already,  at  the 
beginning  of  the  present  century,  in  analogous  circiimstances, 
strengthened  society  when  tottering,  and  raised  France  to  a  high 
degree  of  prosperity  and  grandeur. 

I  selected  as  model  those  institutions  which,  in  place  of  disap- 
pearing at  the  first  breath  of  popular  agitations,  were  overturned 
only  by  all  Europe  being  coalesced  against  us. 

In  a  word,  I  said  to  myself,  since  France  has  existed  for  the  last 


I  The  reader  will  find,  on  a  subsequent  page,  that  the  whole  of  this  constitu- 
tion was  retained  under  the  empire,  with  the  exception  of  a  few  passages,  relating 
to  the  hereditary  part  of  the  empire. 


572 


O.V  CIVIL  LIBERTY 


fifty  years  only  in  virtue  of  the  administration,  military,  judicial, 
religious,  and  financial  organization  of  the  consulate  and  the  em- 
pire, why  should  we  not  adopt  likewise  the  political  institutions  of 
that  period  ?  As  they  were  created  by  the  same  mind,  they  ought 
to  bear  in  themselves  the  same  character  of  nationality  and  practical 
utility. 

In  fact,  as  I  stated  in  my  proclamation,  our  present  society,  it  is 
essential  to  declare,  is  nothing  else  than  France  regenerated  by  the 
revolution  of  '89  and  organized  by  the  emperor.  Nothing  remains 
of  the  old  regime  but  great  reminiscences  and  great  benefits.  But 
all  that  was  then  organized  was  destroyed  by  the  revolution,  and  all 
that  has  been  organized  since  the  revolution,  and  which  still  exists, 
was  done  by  Napoleon. 

We  have  no  longer  either  provinces,  or  pays  dU'tat,  or  parliaments, 
or  intendants,  or  farmers  general,  or  feudal  rights,  or  privileged 
classes  in  exclusive  possession  of  civil  and  military  employments, 
or  different  religious  jurisdiction. 

In  so  many  things  incompatible  with  itself  had  the  revolution 
effected  a  radical  reform,  but  without  founding  anything  definitive. 
The  first  consul  alone  re-established  the  unity,  the  various  ranks, 
and  the  veritable  principles  of  government.     They  are  still  in  vigor. 

Thus,  the  administration  of  France  was  intrusted  to  prefects,  sub- 
prefects,  and  mayors,  who  substituted  unity  for  the  commissions  of 
the  directory  ;  and,  on  the  contrary,  the  decision  of  business  given 
to  councils  from  the  commune  to  the  department.  Thus,  the  magis- 
tracy was  strengthened  by  the  immovability'of  the  judges,  by  the 
various  ranks  of  the  tribunals ;  justice  was  rendered  more  easy  by 
the  delimitation  of  attributions,  from  the  justice  of  peace  to  the 
court  of  cassation.     All  that  is  still  existing. 

In  the  same  way  our  admirable  financial  system,  the  bank  of 
France,  the  establishment  of  budgets,  the  court  of  accounts,  the 
organization  of  police,  and  our  military  regulations,  date  from  the 
same  period. 

For  fifty  years  it  is  the  code  Napoleon  which  had  regulated  the 
interests  of  citizens  amongst  themselves;  and  it  is  still  the  con- 
cordat which  regulates  the  relations  between  the  state  and  the 
church. 

In  fine,  the  greatest  part  of  the  measures  which  concern  the  pro- 
gress of  manufactures,  commerce,  letters,  sciences,  and  the  arts,  from 
the  regulations  of  the  Theatre  Fran^aise  to  those  of  the  Institute — 


A  ND  SELF-  G  O  VERNMENT. 


573 


from  the  institution  of  i\\Q  pnid' hommes  to  the  creation  of  the  legion 
of  honor — were  fixed  by  decrees  of  that  time. 

It  may  then  be  affirmed  that  the  framework  of  our  social  edifice 
is  the  work  of  the  emperor,  and  that  it  has  resisted  his  fall  and 
three  revolutions. 

Why,  with  the  same  origin,  should  not  the  political  institutions 
have  the  same  chances  of  success? 

My  conviction  was  long  formed  on  the  point,  and  it  is  on  that 
account  that  I  submit  to  your  judgment  the  principal  bases  of  a 
constitution,  borrowed  from  that  of  the  year  8.  When  approved 
by  you,  they  will  become  the  foundation  of  our  political  consti- 
tution. 

Let  us  examine  what  the  spirit  of  them  is. 

In  our  country,  monarchical  as  it  has  been  for  eight  hundred 
years,  the  central  power  has  always  gone  on  augmenting.  The 
royalty  destroyed  the  great  vassals ;  the  revolutions  themselves 
swept  away  the  obstacles  which  opposed  the  rapid  and  uniform 
exercise  of  authority.  In  this  country  of  centralization,  public 
opinion  has  unceasingly  attributed  to  the  head  of  the  government 
benefits  as  well  as  evils.  And  so,  to  write  at  the  head  of  a  charter 
that  that  chief  is  irresponsible,  is  to  be  against  the  public  feeling — 
is  to  want  to  establish  a  fiction,  which  has  three  times  vanished  at 
the  noise  of  revolutions. 

The  present  constitution,  on  the  contrary,  declares  that  the  chief 
whom  you  have  elected  is  responsible  before  you  ;  and  that  he  has 
always  the  right  to  appeal  to  your  judgment,  in  order  that,  in 
solemn  circumstances,  you  may  continue  to  him  your  confidence, 
or  withdraw  it. 

Being  responsible,  his  action  ought  to  be  free  and  unshackled. 
Thence  the  obligation  of  his  having  ministers  who  may  be  the 
honored  and  puissant  auxiliaries  of  his  thought,  but  who  no  longer 
form  a  responsible  council,  composed  of  mutually  responsible  mem- 
bers, a  daily  obstacle  to  the  particular  impulse  of  the  head  of  the 
state,  the  expression  of  a  policy  emanating  from  the  chambers,  and 
by  that  very  circumstance  exposed  to  frequent  changes,  which  pre- 
vent all  spirit  of  unity  and  all  application  of  a  regular  system. 

Nevertheless,  the  higher  a  man  is  placed  the  more  independent 
he  is,  and  the  greater  confidence  the  people  have  placed  in  him  the 
more  he  has  need  of  enlightened  and  conscientious  councils.  Thence 
the  creation  of  a  council  of  state,  henceforward  a  veritable  council 


574  ON  CIVIL   LIBERTY 

of  the  government,  first  wheel  in  our  organization,  a  collection  of 
practical  men,  elaborating  bills  in  special  commissions,  discussing 
them  with  closed  doors,  without  oratorical  ostentation  in  general 
assembly,  and  presenting  them  afterwards  for  acceptance  to  the 
legislative  body. 

Thus,  the  government  is  free  in  its  movements  and  enlightened 
in  what  it  does. 

What  is  now  to  be  the  control  exercised  by  the  assemblies? 

A  chamber,  which  takes  the  title  of  legislative  body,  votes  the 
laws  and  the  taxes.  It  is  elected  by  universal  suffrage,  without 
scrutin  de  liste.  The  people,  selecting  each  candidate  separately, 
can  more  easily  appreciate  the  merits  of  each. 

The  chamber  is  not  to  be  any  longer  composed  of  more  than 
about  260  members.  That  is  a  first  guaranty  of  the  calm  of  the 
deliberations,  for  only  ttoo  often  the  inconsistency  and  ardor  of 
passions  have  been  seen  to  increase  in  assemblies  in  proportion  to 
their  number. 

The  report  of  the  sittings,  which  is  intended  to  inform  the  na- 
tion of  what  is  going  on,  is  no  longer,  as  formerly,  delivered  to  the 
party  spirit  of  each  journal ;  an  official  publication,  drawn  up  by 
the  care  of  the  president  of  the  chamber,  will  be  alone  permitted. 

Th^  legislative  body  discusses  freely  each  law,  and  adopts  or 
rejects  it.  But  it  cannot  introduce  all  of  a  sudden  those  amend- 
ments which  often  disarrange  the  whole  economy  of  a  system  and 
the  ensemble  of  the  original  project.  Still  more,  it  does  not  possess 
that  parliamentary  initiative  which  was  the  source  of  such  grave 
abuses,  and  which  allowed  each  deputy  to  substitute  himself  at  every 
turn  for  the  government,  by  presenting  projects  the  least  carefully 
studied  and  inquired  into. 

The  chamber  being  no  longer  in  presence  of  the  ministers,  and 
the  various  bills  being  supported  by  speakers  belonging  to  the 
council  of  state,  time  is  not  lost  in  vain  interpellations  and  pas- 
sionate debates,  the  only  object  of  which  was  to  overturn  the  minis- 
ters, in  order  to  place  others  in  their  stead. 

Thus,  then,  the  deliberations  of  the  legislative  body  will  be  inde- 
pendent, but  the  causes  of  sterile  agitations  will  have  been  sup- 
pressed, and  proper  time  and  deliberation  given  to  each  modification 
of  the  law.  The  representatives  of  the  nation  will,  in  fact,  ma- 
turely perform  their  serious  functions. 

Another  assembly  takes  the  name  of  senate.     \\.  will  be  com- 


AND  SELF-GOVERNMENT.  575 

posed  of  the  elements  which,  throughout  the  whole  country,  create 
legitimate  influences — an  illustrious  name,  fortune,  talent,  and  ser- 
vices rendered. 

The  senate  is  no  longer,  like  the  chamber  of  peers,  the  pale  re- 
flection of  the  chamber  of  deputies,  repeating,  at  some  days'  inter- 
val, the  same  discussion  in  another  tone.  It  is  the  depository  of 
the  fundamental  compact,  and  of  the  liberties  compatible  with  the 
constitution  ;  and  it  is  only  with  respect  to  the  grand  principles  on 
which  our  society  is  based  that  it  examines  all  the  laws,  and  pro- 
poses new  ones  to  the  executive  power.  It  intervenes,  whether  to 
resolve  every  grave  difficulty  which  might  arise  during  the  absence 
of  the  legislative  body,  or  to  explain  the  text  of  the  constitution, 
or  to  insure  what  is  necessary  for  its  being  acted  on.  It  has  the 
right  to  annul  every  arbitrary  and  illegal  act,  and,  thus  enjoying 
that  consideration  which  belongs  to  a  body  exclusively  occupied 
with  the  examination  of  great  interests,  or  the  application  of  grand 
principles,  it  occupies  in  the  state  the  independent,  salutary  and 
conservative  position  of  the  ancient  parliaments. 

The  senate  will  not  be,  like  the  chamber  of  peers,  transformed 
into  a  court  of  justice ;  it  will  preserve  its  character  of  supreme 
moderator;  for  disfavor  always  reaches  political  bodies,  when  the 
sanctuary  of  the  legislators  become  a  criminal  tribunal.  The  im- 
partiality of  the  judge  is  often  called  in  doubt,  and  he  loses  a 
portion  of  his  prestige  in  public  opinion,  which  sometimes  goes 
the  length  of  accusing  him  of  being  the  instrument  of  passion 
or  of  hatred. 

A  high  court  of  justice,  chosen  from  amongst  the  higher  magis- 
trates, having  for  jurymen  members  of  the  councils-general  through- 
out all  France,  will  alone  decide  in  cases  of  attentats  against  the 
head  of  the  state  and  public  safety. 

The  emperor  used  to  say  to  the  council  of  state:  "A  constitu- 
tion is  the  work  of  time ;  and  too  large  a  margin  cannot  be  left  to 
ameliorations."  Consequently,  the  present  constitution  has  fixed 
only  what  it  was  impossible  to  leave  uncertain.  It  has  not  inclosed 
within  an  impassable  circle  the  destinies  of  a  great  people ;  it  has 
left  to  change  a  margin  sufficiently  wide  to  allow,  in  great  crises, 
other  means  of  safety  to  be  employed  than  the  disastrous  expedient 
of  revolutions. 

The  senate  can,  in  concert  with  the  government,  modify  all  that 
is  not  fundamental  in  the  constitution;  but  as  to  the  modifications 


576 


ON  CIVIL  LIBERTY 


effected  in  its  primary  bases,  sanctioned  by  your  suffrages,  they 
cannot  become  definitive  until  after  they  have  received  your  ratifi- 
cation. 

Thus  the  people  remains  always  master  of  its  destiny,  as  nothing 
fundamental  can  be  effected  independently  of  its  will. 

Such  are  the  ideas  and  principles  which  you  have  authorized  me 
to  carry  into  application.  May  the  constitution  confer  on  our 
country  calm  and  prosperous  days  !  May  it  prevent  the  return  of 
those  intestine  struggles,  in  which  the  victory,  however  legitimate 
it  may  be,  is  always  dearly  purchased  !  May  the  sanction,  which 
you  have  bestowed  on  my  efforts,  receive  the  benediction  of  heaven  ! 
In  that  case,  peace  will  be  insured  at  home  and  abroad,  my  prayers 
will  be  granted,  and  my  mission  accomplished  ! 

LOUIS  NAPOLEON  BONAPARTE. 

Palace  of  the  Tuileries,  January  14,  1852. 


Constitution  made  in  virtue  of  the  powers  delegated  by  the  French 
People  to  Louis  Napoleon  Bonaparte  by  the  vote  of  the  20th  and 
2 1st  of  December,  i8ji. 

The  president  of  the  republic — 

Considering  that  the  French  people  has  been  called  on  to  pro- 
nounce its  opinion  on  the  following  resolution  : 

The  people  wish  for  the  maintenance  of  the  authority  of  Louis 
Napoleon  Bonaparte,  and  give  him  the  powers  necessary  to  make  a 
constitution,  according  to  the  bases  laid  down  in  his  proclamation 
of  the  2d  December. 

Considering  that  the  bases  proposed  to  the  acceptance  of  the 
people  were : 

1.  A  responsible  chief  appointed  for  ten  years. 

2.  Ministers  dependent  on  the  executive  power  alone. 

3.  A  council  of  state,  formed  of  the  most  distinguished  men,  to 
prepare  the  laws  and  support  the  discussion  of  them  before  the 
legislative  body. 

4.  A  legislative  body,  to  discuss  and  vote  the  laws,  elected  by  uni- 
versal suffrage,  without  scrutin  de  liste,  which  falsifies  the  election. 


AND  SELF-  G  O  VERNMENT. 


S77 


5.  A  second  assembl}^  formed  of  the  most  illustrious  men  of  the 
country,  as  an  equipoising  power  (^poiivoir  ponder ateiir,^  guardian 
of  the  fundamental  compact  and  of  public  liberties. 

Considering  that  the  people  have  replied  affirmatively  by  seven 
million  five  hundred  thousand  votes, 

Promulgates  the  constitution,  the  tenor  of  which  is  as  follows  : 

CHAPTER  I. 

Art.  I.  The  constitution  admits,  confirms,  and  guarantees  the 
great  principles  proclaimed  in  1789,  and  which  are  the  bases  of  the 
public  right  of  Frenchmen. 

CHAPTER  11. 

FORMS   OF   THE   GOVERNMENT   OF   THE   REPUBLIC. 

Art.  2.  The  government  of  the  French  Republic  is  confided  for 
ten  years  to  Prince  Louis  Napoleon  Bonaparte,  the  actual  president 
of  the  republic. 

Art.  3.  The  president  of  the  republic  governs  by  means  of  min- 
isters, of  the  council  of  state,  of  the  senate,  and  of  the  legislative 
body. 

Art.  4.  The  legislative  power  is  exercised  collectively  by  the 
president  of  the  republic,  the  senate,  and  the  legislative  body. 

CHAPTER  in. 

OF   THE    PRESIDENT   OF   THE   REPUBLIC. 

Art.  5.  The  president  of  the  republic  is  responsible  to  the  French 
people,  to  whom  he  has  always  the  right  to  make  an  appeal. 

Art.  6.  The  president  of  the  republic  is  the  chief  of  the  state; 
he  commands  the  land  and  sea  forces,  declares  war,  makes  treaties 
of  peace,  alliance,  and  commerce,  appoints  to  all  employs,  and 
makes  the  regulations  and  decrees  necessary  for  the  execution  of 
the  laws. 

Art.  7.  Justice  is  rendered  in  his  name. 

Art.  8.   He  alone  has  the  initiative  of  laws. 

Art.  9.   He  has  the  right  of  granting  pardon. 

Art.  10.  He  sanctions  and  promulgates  the  laws  and  the  senatus 
consultum. 

Art.  II.  He  presents  every  year  to  the  senate,  and  to  the  legis- 
lative body,  by  a  message,  the  state  of  the  affairs  of  the  republic. 

37 


578  ON  CIVIL  LIBERTY 

Art.  12.  He  has  the  right  to  declare  the  state  of  siege  in  one 
or  several  departments,  on  condition  of  referring  it  to  the  senate 
within  the  shortest  possible  delay.  The  consequences  of  the  state 
of  siege  are  regulated  by  law. 

Art.  13.  The  ministers  depend  only  on  the  chief  of  the  state 
— they  are  only  responsible  for  the  acts  of  the  government  as 
far  as  they  are  individually  concerned  in  them  ;  there  is  no  joint 
responsibility  among  them,  and  they  can  only  be  impeached  by 
the  senate. 

Art.  14.  The  ministers,  the  members  of  the  senate,  of  the  legis- 
lative body,  and  of  the  council  of  state,  the  officers  of  the  land  and 
sea  forces,  the  magistrates  and  public  functionaries,  take  the  fol- 
lowing oath  :  I  swear  obedience  to  the  constitution  and  fidelity  to  the 
president. 

Art.  15.  A  senatus-consultum  fixes  the  sum  allowed  annually  to 
the  president  of  the  republic  during  the  whole  continuance  of  his 
functions. 

Art.  16.  If  the  president  of  the  republic  dies  before  the  expira- 
tion of  his  term  of  office,  the  senate  is  to  convoke  the  nation,  in 
order  to  proceed  to  a  fresh  election. 

Art.  17.  The  chief  of  the  state  has  the  right,  by  a  secret  act 
deposited  in  the  archives  of  the  senate,  to  point  out  to  the  people 
the  names  of  the  citizens  whom  he  recommends  to  the  interest  of 
France  to  the  confidence  of  the  people  and  to  their  suffrages. 

Art.  18.  Until  the  election  of  the  new  president  of  the  republic, 
the  president  of  the  senate  governs  with  the  co-operation  of  the 
ministers  in  functions,  who  form  themselves  into  a  council  of 
government,  and  deliberate  by  a  majority  of  votes. 

CHAPTER    IV. 

OF  THE  SENATE. 

Art.  19.  The  number  of  senators  shall  not  exceed  150;  it  is 
fixed  for  the  first  year  at  80. 

Art.  20.  The  senate  is  composed  :  i,  of  cardinals,  marshals,  and 
admirals;  2,  of  citizens  whom  the  president  of  the  republic  may 
think  proper  to  raise  to  the  dignity  of  senators. 

Art.  21.  The  senators  are  appointed  for  life. 

Art.  22.  The  functions  of  senator  are  gratuitous  ;  nevertheless, 
the  president  of  the  republic  may  grant  to  senators,  on  account  of 


AND  SELF-GOVERNMENT.  579 

services  lendered,  or  of  their  position  with  regard  to  fortune,  a 
personal  donation,  which  cannot  exceed  30,000  francs  per  annum. 

Art.  23.  The  president  and  the  vice-presidents  of  the  senate  are 
named  by  the  president  of  the  republic,  and  chosen  from  among 
the  senators.  They  are  appointed  for  one  year.  The  salary  of  the 
president  of  the  senate  is  fixed  by  a  decree. 

Art.  24.  The  president  of  the  republic  convokes  and  prorogues 
the  senate.  He  fixes  the  duration  of  its  sessions  by  a  decree.  The 
sittings  of  the  senate  are  not  public. 

Art.  25.  The  senate  is  the  guardian  of  the  fundamental  compact 
and  of  public  liberties.  No  law  can  be  promulgated  without  being 
submitted  to  it. 

Art.  26.  The  senate  may  oppose  the  promulgation: 

1.  Of  laws  which  may  be  contrary  to,  or  be  an  attack  on,  the 
constitution,  on  religion,  on  morals,  on  freedom  of  worship,  on  in- 
dividual liberty,  on  the  equality  of  citizens  in  the  eye  of  the  law,  on 
the  inviolability  of  property,  and  on  the  principle  of  the  immova- 
bility of  the  magistracy. 

2.  Of  those  which  may  comprise  the  defence  of  the  territory. 
Art.  27.  The  senate  regulates  by  a  senatus-consnltum  : 

1.  The  constitution  of  the  colonies  and  of  Algeria. 

2.  All  that  has  not  been  provided  for  by  the  constitution,  and 
which  is  necessary  for  its  march. 

3.  The  sense  of  the  articles  of  the  constitution  which  give  rise 
<;o  different  interpretations. 

Art.  28.  These  senatus-consulta  will  be  submitted  to  the  sanc- 
tion of  the  president  of  the  republic,  and  promulgated  by  him. 

Art.  29.  The  senate  maintains  or  annuls  all  the  acts  which  are 
referred  to  it  as  unconstitutional  by  the  government,  or  denounced 
for  the  same  cause  by  the  petitions  of  citizens. 

Art.  30.  The  senate  may,  in  a  report  addressed  to  the  president 
of  the  republic,  lay  down  the  bases  of  bills  of  great  national  interest. 

Art.  31.  It  may  also  propose  modifications  in  the  constitution. 
If  the  proposition  is  adopted  by  the  executive  power,  it  must  be 
stated  by  a  senatus-consultum. 

Art.  32.  Nevertheless,  all  modifications  in  the  fundamental  basis 
of  the  constitution,  such  as  they  were  laid  down  in  the  proclama- 
tion of  the  2d  December,  and  adopted  by  the  French  people,  shall 
be  submitted  to  universal  suffrage. 

Art.  2^1.  In  case  of  the  dissolution  of  the  legislative  body,  and 


58o 


Oy  CIVIL  LIBERTY 


until  a  new  convocation,  the  senate,  on  the  proposition  of  the  presi- 
dent of  the  republic,  shall  provide  by  measures  of  urgency  for  all 
that  is  necessary  for  the  progress  of  the  government. 

CHAPTER   V. 

OF  THE   LEGISLATIVE   BODY. 

Art.  34.  The  election  has  for  its  basis  the  number  of  the  popu- 
lation. 

Art.  35.  There  shall  be  one  deputy  to  the  legislative  body  for 
every  35,000  electors. 

Art.  36.  The  deputies  are  to  be  elected  by  universal  suffrage, 
without  scriitin  de  liste. 

Art.  37.  They  will  not  receive  any  payment. 

Art.  38.  They  are  named  for  six  years. 

Art.  39.  The  legislative  body  discusses  and  votes  bills  and  taxes. 

Art.  40.  Any  amendment  adopted  by  the  committee  charged  to 
examine  a  bill  shall  be  sent  back  without  discussion  to  the  council 
of  state  by  the  president  of  the  legislative  body.  If  the  amendment 
is  not  adopted  by  the  council  of  state,  it  cannot  be  submitted  to  the 
discussion  of  the  legislative  body. 

Art.  41.  The  ordinary  sessions  of  the  legislative  body  last  three 
months ;  its  sittings  are  public  ;  but,  at  the  demand  of  five  mem- 
bers, it  may  form  itself  into  a  secret  committee. 

Art.  42.  The  report  of  the  sittings  of  the  legislative  body  by 
the  journals,  or  by  any  other  means  of  publication,  shall  only  con- 
sist in  the  reproduction  of  the  minutes  of  the  sitting,  drawn  up  at 
its  conclusion  under  the  direction  of  the  president  of  the  legislative 
body. 

Art.  43.  The  president  and  vice-presidents  of  the  legislative 
body  are  named  by  the  president  of  the  republic  for  one  year ; 
they  are  to  be  chosen  from  among  the  deputies.  The  salary  of  the 
president  of  the  legislative  body  will  be  fixed  by  a  decree. 

Art.  44.  The  ministers  cannot  be  members  of  the  legislative 
body. 

Art.  45.  The  right  of  petition  can  only  be  exercised  as  regards 
the  senate.     No  petition  can  be  addressed  to  the  legislative  body. 

Art.  46.  The  president  of  the  republic  convokes,  adjourns,  pro- 
rogues, and  dissolves  the  legislative  body.  In  the  event  of  its  being 
dissolved,  the  president  of  the  republic  must  convoke  a  new  one 
within  a  delay  of  six  months. 


AND  SELF-GOVERNMENT.  58 1 

CHAPTER  VI. 

OF  THE   COUNCIL   OF   STATE. 

Art.  47.  The  number  of  councillors  of  state  in  ordinary  service 
ij  from  forty  to  fifty? 

Art.  48.  The  councillors  of  state  are  named  by  the  president  of 
tiie  republic,  and  may  be  dismissed  by  him. 

Art.  49.  The  council  of  state  is  presided  over  by  the  president 
of  the  republic,  and  in  his  absence  by  the  person  whom  he  appoints 
as  vice-president  of  the  council  of  state. 

Art.  50.  The  council  of  state  is  charged,  under  the  direction  of 
the  president  of  the  republic,  to  draw  up  bills  and  the  regulations 
uf  public  administration,  and  to  solve  the  difficulties  which  may 
arise  in  administrative  matters. 

Art.  51.  It  supports,  in  the  name  of  the  government,  the  dis- 
cussion of  bills  before  the  senate  and  legislative  body.  The  coun- 
cillors of  state  charged  to  speak  in  the  name  of  the  government  are 
to  be  named  by  the  president  of  the  republic. 

Art.  52.  The  salary  of  each  councillor  of  state  is  25,000  francs. 

Art.  53.  The  ministers  have  rank,  sitting,  and  deliberative  votes 
in  the  council  of  state. 

CHAPTER   VII. 

OF  THE   HIGH   COURT   OF  JUSTICE. 

Art.  54.  a  high  court  of  justice  shall  try,  without  appeal,  or 
without  recourse  to  cassation,  all  persons  who  may  be  sent  before 
it  charged  with  crime,  attentats,  or  conspiracies  against  the  presi- 
dent of  the  republic,  and  against  the  internal  and  external  safety 
of  the  state.  It  can  only  be  formed  in  virtue  of  a  decree  of  the 
president  of  the  republic. 

Art.  55.  A  senatus-consultum  will  determine  the  organization 
of  this  high  court. 

CHAPTER   VIII. 

GENERAL  AND   TRANSITORY    CLAUSES. 

Art.  56.  The  provisions  of  the  codes,  laws  and  regulations, 
which  are  not  contrary  to  the  present  constitution,  remain  in  vigor 
until  they  shall  have  been  legally  revoked. 

Art.  57.  The  municipal  organization  shall  be  determined  by 
law.  The  mayors  shall  be  named  by  the  executive  power,  and  may 
be  chosen  from  those  not  belonging  to  the  municipal  council. 


582  ox  CIVIL  LIBERTY 

Art.  58.  The  present  constitution  will  be  in  vigor  from  the  dav 
on  which  the  great  bodies  of  the  state  shall  have  been  constituted. 
The  decrees  issued  by  the  president  of  the  republic,  from  the  2d 
December  up  to  that  period,  shall  have  the  force  of  law. 

Given  at  the  Palace  of  the  Tuileries,  this  f4th  day  of  January, 
1852. 

LOUIS  NAPOLEON. 
vSealed  with  the  great  seal. 

The  reader  must  remember  that  all  the  decrees,  which  were  issued 
after  the  coup  d'etat,  and  before  its  "ratification"  by  the  people, 
were  considered  as  ratified  likewise ;  for  instance,  the  still  existing 
law  by  which  the  government  transports  members  of  secret  political 
societies,  without  trial,  and  by  authority  of  which  many  other  per- 
sons deemed  dangerous  were  transported  to  Cayenne.  The  same 
is  to  be  said  of  the  stringent  law  of  the  press  according  to  which 
every  paper  exists  at  the  will  of  the  government,  with  regulations 
which  may  become  utterly  ruinous  for  the  editor  and  publisher. 
The  minute  regulations  of  the  coats  and  trowsers  of  the  senators 
and  members  of  the  legislative  corps  need  not  probably  be  men- 
tioned here  as  organic  laws;  but  on  March  22d,  1852,  appeared 
the  following  important  decree : 

Louis  Napoleon,  President  of  the  French  Republic  : 

Considering  article  4  of  the  constitution,  and  seeing  that  at  the 
moment  when  the  senate  and  legislative  body  are  about  to  enter  on 
their  first  session,  it  is  important  to  regulate  their  relations  with 
the  president  of  the  republic  and  the  council  of  state,  and  to 
establish,  according  to  the  constitution,  the  organic  conditions  of 
their  works,  decrees : 

THIRD   DIVISION.— OF   THE   LEGISLATIVE   BODY. 
CHAPTER    I. 

MEETING   OF  THE   LEGISLATIVE  BODY,  FORMATION  AND   ORGANIZATION  OF  THE 
BUREAUS,  AND   VERIFICATION   OF  THE  POWERS. 

Art.  41.  The  legislative  body  is  to  meet  on  the  day  named  by 
the  decree  of  convocation. 

Art.  42.  At  the  opening  of  the  first  sitting  the  president  of  the 


AND  SELF-GOVERNMENT.  583 

legislative  body,  assisted  by  the  four  youngest  members  present, 
who  will  fill  the  functions  of  secretaries  during  the  session,  will 
proceed  to  form  the  assembly  into  seven  bureaus,  drawn  by  lot. 

Art.  43.  These  seven  bureaus,  named  for  the  whole  of  the  ses- 
sion, will  each  be  presided  over  by  the  oldest  member,  the  youngest 
performing  the  office  of  secretary. 

Art.  44.  They  will  immediately  proceed  to  the  examination 
of  the  minutes  of  the  election  of  the  members  distributed  by  the 
president  of  the  legislative  body,  appointing  one  or  several  of 
their  members  to  bring  up  a  report  thereof  in  a  public  sitting. 

Art.  45.  The  assembly  examines  these  reports:  if  the  election 
be  declared  valid,  the  member  when  present  immediately  takes  the 
oath  prescribed  by  article  14  of  the  constitution;  if  absent,  at  his 
first  appearance,  after  which  the  president  of  the  legislative  body 
pronounces  his  admission,  and  the  deputy  who  has  not  taken  the 
oath  within  fifteen  days  of  his  election  is  considered  as  dismissed. 
In  case  of  absence  the  oath  may  be  taken  by  writing,  and  in  this 
case  must  be  addressed  by  the  deputy  to  the  president  of  the  legis- 
lative body,  within  the  delay  above  mentioned. 

Art.  46.  After  the  verification  of  the  returns,  and  without  wait- 
ing for  the  decision  on  contested  or  adjourned  elections,  the  presi- 
dent of  the  legislative  body  shall  make  known  to  the  president  of 
the  republic  that  the  legislative  body  is  constituted. 

CHAPTER   II. 

PRESENTATION,  DISCUSSION,  AND   VOTE   OF   BILLS. 

Art.  47.  Bills  presented  by  the  president  of  the  republic  are  to 
be  presented  and  read  to  the  legislative  body  by  councillors  of  state 
appointed  for  that  purpose,  or  transmitted,  by  order  of  the  presi- 
dent of  the  republic,  by  the  minister  of  state  to  the  president  of 
the  legislative  body,  who  causes  them  to  be  read  at  the  public 
sitting.  These  bills  will  be  printed,  distributed,  and  placed  on  the 
order  of  the  day  of  the  bureaus,  which  will  discuss  them  and  name 
by  ballot,  and  by  a  simple  majority,  a  committee  of  seven  members 
to  report  on  them. 

Art.  48.  Any  amendment  arising  from  the  initiative  of  one  or 
more  members,  must  be  handed  to  the  president,  and  be  by  him  trans- 
mitted to  the  committee.  No  amendment  can,  however,  be  received 
after  the  report  shall  have  been  presented  at  the  public  sitting. 


584  ON  CIVIL   LIBERTY 

Art.  49.  The  authors  of  the  amendment  have  a  right  to  be 
heard  before  the  committee. 

Art.  50.  If  the  amendment  is  adopted  by  the  committee,  it 
transmits  the  tenor  of  it  to  the  president  of  the  legislative  body, 
who  sends  it  to  the  council  of  state,  and  the  report  of  the  com- 
mittee is  suspended  until  the  council  of  state  has  pronounced  its 
opinion  on  it. 

Art.  51.  If  the  opinion  of  the  council  of  state,  transmitted  to 
the  committee  through  the  president  of  the  legislative  body,  is  favor- 
able, or  a  new  wording  proposed  by  the  council  of  state  be  adopted 
by  the  committee,  the  text  of  the  bill  to  be  discussed  in  public 
sitting  shall  be  modified  conformably  to  the  new  wording  adopted. 
If  the  opinion,  on  the  contrary,  is  unfavorable,  or  if  the  new  wording 
proposed  by  the  council  of  state  is  not  adopted  by  the  committee, 
the  amendment  will  be  considered  as  not  having  been  offered. 

Art.  52.  The  report  of  the  committee  on  the  bill  examined  by 
it  shall  be  read  in  a  public  sitting,  and  printed  and  distributed  at 
least  twenty-four  hours  before  the  discussion. 

Art.  53.  At  the  sitting  fixed  by  the  order  of  the  day,  the  dis- 
cussion shall  open  on  the  ensemble  of  the  bill,  and  afterwards  on 
the  different  articles  or  chapters,  if  it  be  a  law  on  finance.  There 
is  never  any  occasion  to  deliberate  on  the  question  of  deciding  if 
the  discussion  of  the  articles  is  to  be  passed  to,  as  they  are  succes- 
sively put  to  the  vote  by  the  president.  The  vote  takes  place  by 
assis  et  leve,  and  if  the  result  is  doubtful,  a  ballot  is  proceeded  to. 

Art.  54,  If  any  article  is  rejected,  it  is  sent  back  to  the  com- 
mittee for  examination.  Each  deputy  then,  in  the  form  specified 
in  articles  48  and  49  of  the  present  decree,  presents  such  amend- 
ments as  he  pleases.  Should  the  committee  be  of  opinion  that  a 
new  proposition  ought  to  be  made,  it  transmits  the  tenor  of  it  to 
the  president  of  the  legislative  body,  who  forwards  it  to  the  coun- 
cil of  state.  The  matter  is  then  proceeded  on  in  conformity  with 
articles  51,  52,  and  53  of  the  present  decree,  and  the  public  vote 
which  then  takes  place  is  definitive. 

Art.  55.  After  the  vote  on  the  articles,  a  public  vote  on  the 
ensemble  of  the  bill  takes  place  by  the  absolute  majority.  The 
presence  of  the  majority  of  the  deputies  is  necessary  to  make  the 
vote  valid.  Should  less  than  that  number  be  present,  the  vote 
must  be  recommenced.  Bills  of  local  interest  are  voted  by  assis  et 
leve,  unless  the  ballot  be  called  for  by  ten  members  at  least. 


AND  SELF-GOVERNMENT.  585 

Art.  56.  The  legislative  body  assigns  no  reasons  for  its  decisions, 
which  are  expressed  in  the  following  form  :  "The  legislative  body 
has  adopted  ;"  or  "  The  legislative  body  has  not  adopted." 

Art.  57.  The  minute  of  the  bill  adopted  by  the  legislative  body 
is  signed  by  the  presidents  and  secretaries,  and  deposited  in  the 
archives.  A  copy  of  the  same,  similarly  signed,  is  transmitted  to 
the  president  of  the  republic. 

CHAPTER   III. 

MESSAGES  AND   PROCLAMATIONS   ADDRESSED   TO  THE   LEGISLATIVE  BODY    BY 
THE   PRESIDENT    OF  THE   REPUBLIC. 

Art.  58.  These  are  brought  up  and  read  in  open  sitting  by  the 
ministers  or  councillors  of  state  named  for  that  purpose.  These 
messages  or  proclamations  cannot  be  discussed  or  voted  upon  unless 
they  contain  a  proposition  to  that  effect. 

Art.  59.  The  proclamations  of  the  president  of  the  republic, 
adjourning,  proroguing,  or  dissolving  the  legislative  body,  are  to 
be  read  in  public  sitting,  all  other  business  being  suspended,  and 
the  members  are  immediately  afterwards  to  separate. 

Art.  60.  The  president  of  the  legislative  body  announces  the 
opening  and  closing  of  each  sitting.  At  the  end  of  each  sitting, 
after  having  consulted  the  members,  he  names  the  hour  of  sitting 
for  the  following  day,  and  the  order  of  the  day,  which  are  posted 
up  in  the  assembly.  This  order  of  the  day  is  immediately  for- 
warded to  the  minister  of  state,  the  president  of  the  legislative 
body  being  responsible  for  all  notices  and  communications  being 
duly  forwarded  to  him. 

Art.  61.  No  member  can  speak  without  having  asked  and  ob- 
tained leave  of  the  president,  and  then  only  from  his  place. 

Art.  62.  The  members  of  the  council  of  state  appointed  in  the 
name  of  the  government  to  support  the  discussion  of  the  laws  are 
not  subject  to  the  formality  of  speaking  in  their  turn,  but  whenever 
they  require  it. 

Art.  6t,.  The  member  called  to  order  for  having  interrupted 
cannot  be  allowed  to  speak.  If  the  speaker  wanders  from  the 
question,  the  president  may  call  him  back  to  it.  The  president 
cannot  allow  any  one  to  speak  on  the  call  to  the  question.  If  the 
speaker  twice  called  to  the  question  in  the  same  speech  shall  con- 
tinue to  wander  from  it,  the  president  consults  the  assembly  to 
ascertain  whether  the  right  of  speaking  shall  not  be  interdicted  to 


586  ON  CIVIL  LIBERTY 

the  speaker  for  the  rest  of  the  sitting  on  the  same  question.  The 
decision  takes  place  by  assis  et  leve  without  debate. 

Art.  64.  The  president  alone  calls  to  order  the  speaker  who 
may  interrupt  it.  The  right  to  speak  is  accorded  to  him  who,  on 
being  called  to  order,  submits  and  demands  to  justify  himself;  he 
alone  obtains  the  right  to  speak.  When  a  speaker  has  been  twice 
called  to  order  in  the  same  speech,  the  president,  after  having 
allowed  him  to  speak  to  justify  himself,  if  he  demands  it,  consults 
the  assembly  to  know  if  the  right  of  speaking  shall  not  be  inter- 
dicted to  the  speaker  for  the  rest  of  the  sitting  on  the  same  ques- 
tion.    The  decision  is  taken  by  assis  et  leve  without  debate. 

Art.  65.  All  personalities  and  all  signs  of  approbation  or  dis- 
approbation are  interdicted. 

Art.  (yd.  If  a  member  of  the  legislative  body  disturbs  order, 
he  is  called  to  order  by  name  by  the  president  \  if  he  persists,  the 
president  orders  the  call  to  order  to  be  inscribed  in  the  minutes. 
In  case  of  resistance,  the  assembly,  on  the  proposition  of  the  presi- 
dent, pronounces,  without  debate,  exclusion  from  the  house  for  a 
period  which  cannot  exceed  five  days.  The  placarding  of  this  de- 
cision in  the  department  in  which  the  member  whom  it  concerns 
was  elected  may  be  ordered. 

Art.  67.  If  the  assembly  becomes  tumultuous,  and  if  the  presi- 
dent cannot  calm  it,  he  puts  on  his  hat.  If  the  disorder  continues, 
he  announces  that  he  will  suspend  the  sitting.  If  calm  be  not 
then  re-established,  he  suspends  the  sitting  during  an  hour,  during 
which  the  deputies  assemble  in  their  respective  bureaus.  On  the 
expiration  of  the  hour  the  sitting  is  resumed  ;  but,  if  the  tumult 
recommences,  the  president  breaks  up  the  sitting  and  postpones  it 
to  the  next  day. 

Art.  68.  The  demands  for  the  order  of  the  day,  for  priority,  and 
for  an  appeal  to  the  standing  orders,  have  the  preference  over  the 
principal  question,  and  suspend  the  discussion  of  it.  Orders  of 
the  day  are  never  motives.  The  previous  question — that  is  to  say, 
that  there  is  no  ground  for  deliberation — is  put  to  the  vote  before 
the  principal  question.  It  cannot  be  demanded  on  propositions 
made  by  the  president  of  the  republic. 

Art.  69.  The  demands  for  secret  sittings,  authorized  by  article 
14  of  the  constitution,  are  signed  by  the  members  who  make  them, 
and  placed  in  the  hands  of  the  president,  who  reads  them,  causes 
them  to  be  executed,  and  mentioned  in  the  minutes. 


AND  SELF-GOVERNMENT.  587 

Art,  70.  When  the  authorization  required  by  article  ii  of  the 
law  of  the  2d  February,  1852,  shall  be  demanded,  the  president 
shall  only  indicate  the  object  of  the  demand,  and  immediately 
refer  it  to  the  bureaus,  which  shall  nominate  a  committee  to  examine 
whether  there  be  grounds  for  authorizing  a  prosecution. 

CHAPTER   IV. 


Art.  71.  The  drawing  up  of  the  minutes  of  the  sittings  is  placed 
under  the  high  direction  of  the  president  of  the  legislative  body, 
and  confided  to  special  clerks  nominated  by  him,  and  liable  to 
dismissal  by  him.  The  minutes  contain  the  names  of  the  members 
who  have  spoken,  and  the  resume  of  their  opinions. 

Art.  72.  The  minutes  are  signed  by  the  president,  read  by  one 
of  the  secretaries  at  the  following  sitting,  and  copied  on  two  regis- 
ters, signed  also  by  the  president. 

Art.  73.  The  president  of  the  legislative  body  regulates,  by 
special  order,  the  mode  of  communicating  the  minutes  to  the  news- 
papers, in  conformity  with  article  42  of  the  constitution. 

Art.  74.  Any  member  may,  after  having  obtained  the  authori- 
zation of  the  assembly,  cause  to  be  printed  and  distributed,  at  his 
own  cost,  the  speech  he  may  have  delivered.  An  unauthorized 
printing  and  distribution  shall  be  punished  by  a  fine  of  from  5oof. 
to  5ooof.  against  the  printers,  and  of  from  5f.  to  5 oof.  against  the 
distributors. 

We  read  in  the  Constitutionnel :  "  It  is,  as  already  stated,  at  the 
Tuileries,  in  the  Salle  des  Marechaux,  that  the  sitting  of  the  senate 
and  legislative  body  on  the  29th  will  be  held.  The  prince-presi- 
dent, surrounded  by  his  aides-de-camp,  his  orderly  officers,  his 
ministers,  and  the  council  of  state,  will  be  placed  on  a  raised  plat- 
form ;  opposite  the  president  of  the  republic  will  be,  on  one  side 
the  senate,  and  on  the  other  the  legislative  body.  The  prince- 
president  will  deliver  a  speech.  A  form  of  an  oath  will  then  be 
read,  and  each  member  of  the  senate  and  of  the  legislative  body, 
on  his  name  being  called  over,  will  pronounce  from  his  place  the 
wordsy>  le  jure  !  The  clergy,  the  magistracy,  and  the  diplomatic 
body  will  be  represented  at  this  solemnity.  A  small  number  of 
f>laces  will  be  reserved  in  an  upper  gallery  for  persons  receiving 
invitations." 


APPENDIX  XV. 


REPORT  OF  THE  FRENCH  SENATORIAL  COMMITTEE  ON  THE 
PETITIONS  TO  CHANGE  THE  REPUBLIC  INTO  AN  EMPIRE, 
IN  NOVEMBER,  1852,^  AND  THE  SENATUS-CONSULTUM 
ADOPTED  IN  CONFORMITY  WITH  IT. 

Messieurs  les  Senateurs  :  France,  attentive  and  excited,  now 
demands  from  you  a  great  political  act  —  to  put  an  end  to  her 
anxieties  and  to  secure  her  future. 

But  this  act,  however  serious  it  may  be,  does  not  meet  with  any 
of  those  capital  difficulties  which  hold  in  suspense  the  wisdom  of 
legislators.  You  know  the  wishes  expressed  by  the  councils  gen- 
eral, the  councils  of  arrondissement,  and  the  addresses  of  the  com- 
munes of  France :  wishes  for  stability  in  the  government  of  Louis 
Napoleon,  and  for  return  to  a  political  form  which  has  struck  the 
world  by  the  majesty  of  its  power  and  by  the  wisdom  of  its  laws. 
You  have  heard  that  immense  petition  of  a  whole  people  rushing 
on  the  steps  of  its  liberator,  and  those  enthusiastic  cries,  which 
we  may  almost  call  a  plebiscite  by  anticipation,  proceeding  from 
the  hearts  of  thousands  of  agriculturists  and  workmen,  manufac- 
turers and  tradesmen.  Such  manifestations  simplify  the  task  of 
statesmen.  There  are  circumstances  in  which  fatal  necessities  pre- 
vent the  firmest  legislator  from  acting  in  accordance  with  public 
opinion  and  with  his  own  reason ;  there  are  others  where  he 
requires  a  long  consideration  in  order  to  solve  questions  on  which 
the  country  has  not  sufficiently  decided.     You,  gentlemen,  are  not 


'  This  report  was  read  by  Mr.  Troplong,  chairman  of  the  committee.  It  is 
universally  ascribed  to  him,  and  Mr.  Troplong  is  now  president  of  the  senate. 
Whether  this  remarkable  paper  be  considered  as  a  political  creed  or  confiteor,  or 
as  a  piece  of  attempted  logic  to  connect  certain  occurrences  and  account  for  sur- 
prising turns,  or  as  a  high  state  paper  of  singular  shallowness — in  whatever  lighf 
it  may  be  viewed,  it  will  be  allowed  on  all  hands  that  it  fully  deserves  preserva- 
tion. 

588 


ON  CIVIL  LIBERTY  AND  SELF-GOVERNMENT.     589 

exposed  either  to  this  constraint  or  to  this  embarrassment.  The 
national  will  presses  and  supplicates  you,  and  your  exalted  expe- 
rience tells  you  that  in  yielding  to  her  entreaties  you  will  con- 
tribute to  replace  France  in  the  paths  which  are  suitable  to  her 
interests,  to  her  grandeur,  and  to  the  imperious  necessities  of  her 
situation.  All  this  is  in  fact  explained  by  the  events  which  take 
place  before  )'ou. 

After  great  political  agitations,  it  always  happens  that  nations 
throw  themselves  with  joy  into  the  arms  of  the  strong  man  whom 
Providence  sends  to  them.  It  was  the  fatigue  of  civil  wars  which 
made  a  monarch  of  the  conqueror  of  Actium ;  it  was  the  horror 
of  revolutionary  excesses,  as  much  as  the  glory  of  Marengo,  which 
raised  the  imperial  throne.  In  the  midst  of  the  recent  dangers  of 
the  country,  this  strong  man  showed  himself,  on  the  loth  of 
December,  184S,  and  on  the  2d  of  December,  1851,  and  France 
confided  to  him  her  standard,  which  was  ready  to  perish.  If  she 
has  declared  her  will  to  confide  it  to  him  forever  in  this  memorable 
journey,  which  was  only  one  suite  of  triumphs,  it  is  because,  by  his 
courage  and  by  his  prudence,  the  man  has  shown  himself  equal  to 
the  task ;  it  is  because,  when  a  nation  feels  herself  tormented  by 
the  agitations  of  a  stormy  government,  a  necessary  reaction  leads 
it  towards  him  who  can  best  secure  order,  stability  and  repose. 

Louis  Napoleon,  therefore,  is  in  this  wonderful  situation,  that 
he  alone  holds  in  his  hands  these  inestimable  gifts.  He  has  in  the 
eyes  of  France,  his  immense  services,  the  magic  of  his  popularity, 
the  souvenirs  of  his  race,  the  imperishable  remembrance  of  order, 
of  organization,  and  of  heroism,  which  make  the  hearts  of  all 
Frenclimen  beat.  He  again  revives  in  the  eyes  of  Europe  the 
greatest  name  of  modern  days,  no  more  for  the  military  triumphs 
for  which  his  history  is  so  rich,  but  for  chaining  down  the  political 
and  social  tempests,  for  endowing  France  with  the  conquests  of 
peace,  and  for  strengthening  and  fertilizing  the  good  relations  of 
states.  Both  at  home  and  abroad  it  is  to  him  that  is  attached  a 
vast  future  of  pacific  labor  and  of  civilization.  That  future  must 
not  be  delivered  to  the  chance  of  events  and  to  the  surprise  of 
factions. 

That  is  why  France  demands  the  monarchy  of  the  emperor  ;  that 
is  to  say,  order  in  revolution,  and  rule  in  democracy.  She  wished 
it  on  the  loth  December,  when  the  artifices  of  an  inimical  consti- 
tution prevented  the  people  from  expressing  their  opinion.     She 


590 


ON  CIVIL  LIBERTY 


wished  it  again  on  December  20,  when  the  moderation  of  a  noble 
character  prevented  its  being  demanded.  But  now  the  public 
sentiment  overflows  like  a  torrent ;  there  are  moments  when  en- 
thusiasm has  also  the  right  of  solving  questions.  For  some  time 
past  visible  signs  announced  what  must  be  the  mission  of  Louis 
Napoleon,  and  the  foreseeing  reason  of  statesmen  put  itself  in  ac- 
cordance with  the  popular  instinct  in  order  to  fix  the  character  of 
it.  After  the  bitter  sarcasm  which  put  the  heir  to  a  crown  at  the 
head  of  the  republic,  it  was  evident  that  France,  still  democratic 
from  her  habits,  never  ceased  to  be  monarchical  in  her  instincts, 
and  that  she  wished  for  the  re-establishment  of  the  monarchy  in 
the  person  of  the  prince  who  revealed  himself  to  her  as  the  con- 
ciliator of  two  ages  and  of  two  minds,  the  line  of  union  of  the 
government  and  of  the  people,  the  monarchical  s3'mbol  of  organ- 
ized democracy. 

At  the  end  of  the  last  century,  the  preponderance  of  the  demo- 
cratic element  gave  rise  to  a  belief  in  speculative  or  ardent  minds 
that  France  ought  to  mark  the  new  era  into  which  she  had  entered 
by  a  divorce  between  her  government  and  the  monarchical  form. 
The  republic  was  borrowed  from  the  souvenirs  of  antiquity.  But 
in  France  political  imitations  seldom  succeed.  Our  country, 
although  taxed  with  frivolity,  is  invincibly  attached  to  certain 
national  ideas  and  to  certain  traditional  habits,  by  which  it  pre- 
serves the  originality  of  which  it  is  proud.  The  republic  could 
not  acclimatize  itself  on  the  French  soil.  It  perished  from  its 
own  excesses,  and  it  only  went  into  those  excesses  because  it  was 
not  in  the  instincts  of  the  nation.  It  was  but  an  interval,  brilliant 
abroad,  and  terrible  at  home,  between  two  monarchies. 

At  that  period,  glory  had  raised  to  power  one  of  those  men  who 
found  dynasties  and  who  traverse  ages.  It  is  on  that  new  stem 
that  France  saw  flourish  a  monarchy  suitable  to  modern  times,  and 
which  yielded  to  no  other  in  its  grandeur  and  in  its  power.  Was 
it  not  a  great  lesson  to  see  a  similar  fortune  reserved,  fifty  years 
after,  for  a  second  trial  of  the  republican  form  ?  Is  it  not  a  striking 
example  of  the  perseverance  of  the  French  mind  in  things  which 
are  like  the  substance  of  her  political  life?  Is  not  the  proof  com- 
plete and  decisive  ? 

It  will  be  the  more  so,  as  the  imperial  monarchy  has  all  the 
advantages  of  the  republic  without  its  dangers.  The  other  mon- 
archical   regimes    (the   illustrious   services  of  which  we  will    not 


AA'D  SELF-GOVERNMENT.  591 

depreciate)  have  been  accused  of  having  placed  the  throne  too  far 
from  the  people,  and  the  republic,  boasting  of  its  popular  origin, 
skilfully  entrenched  itself  against  them  in  the  masses,  who  believed 
themselves  to  be  forgotten  and  overlooked.  But  the  empire, 
stronger  than  the  republic  on  democratic  grounds,  removes  that 
objection.  It  was  the  government  the  most  energetically  supported 
and  the  most  deeply  regretted  by  the  people.  It  is  the  people 
who  have  agsin  found  it  in  their  memory  to  oppose  it  to  the 
dreams  of  ideologists  and  to  the  attempts  of  perturbators.  On 
the  one  hand,  it  is  the  only  one  which  can  glorify  itself  in  the 
right  recognized  by  the  old  monarchy,  "that  it  is  to  the  French 
nation  that  it  belongs  to  choose  its  king;"  on  the  other,  it  is  the 
only  one  which  has  not  had  quarrels  to  settle  with  the  people. 
When  it  disappeared  in  1814,  it  was  not  by  a  struggle  of  the 
nation  against  its  government.  The  chances  of  an  unequal 
foreign  war  brought  about  that  violent  divorce.  But  the  people 
have  never  ceased  to  see  in  the  empire  its  emanation  and  its  work; 
and  they  placed  it  in  their  affections  far  above  the  republic — an 
anonymous  and  tumultuous  government,  which  they  remember 
much  more  by  the  violence  of  its  proconsuls  than  by  the  victories 
which  were  the  price  of  French  valor. 

That  is  why  the  Napoleonic  monarchy  absorbed  the  republic  a 
first  time,  and  must  absorb  it  a  second  time.  The  republic  is  vir- 
tually in  the  empire,  on  account  of  the  contract-like  character  of 
the  institution,  and  of  the  communication  and  express  delegation 
of  power  by  the  people.  But  the  empire  is  superior  to  the  republic, 
because  it  is  also  the  monarchy ;  that  is  to  say,  the  government  of 
all  confided  to  the  moderating  action  of  one,  with  hereditary  suc- 
cession as  a  condition,  and  stability  as  its  consequence.  Monarchy 
has  the  excellent  quality  of  yielding  admirably  to  all  the  progress 
of  civilization  :  by  turns  feudal,  absolutist,  and  mixed ;  always  old 
and  always  modern,  it  onlj^  remains  to  it  to  reopen  the  era  of  its 
democratic  transformation,  which  was  inaugurated  by  the  emperor. 
That  is  what  France  now  wishes  ;  it  is  what  is  asked  of  you  by  a 
country  fatigued  with  Utopian  ideas,  incredulous  with  respect  to 
political  abstractions,  and  whose  genius,  a  union  of  sound  sense  and 
poesy,  is  so  constituted  that  it  only  believes  in  power  under  the 
figure  of  a  hero  or  a  prince. 

Even  if  the  love  of  Frenchmen  for  monarchy  be  only  a  preju- 
dice, it  must  be  respected  ;    a  people   can   only  be   governed  in 


592  ON  CIVIL  LIBERTY 

accordance  with  its  ideas.  But  it  must  in  particular  be  respected, 
because  it  is  inspired  by  the  most  essential  wants  and  the  most 
legitimate  interests  of  the  country. 

France  is  a  great  state  which  wishes  to  preserve  at  home  and 
abroad  the  force  which  a  vast  territory  and  thirty-five  millions  of 
inhabitants  give.  She  is  both  agricultural  and  commercial.  Not- 
withstanding the  fertility  of  her  soil,  she  would  be  poor  if  manu- 
factures were  not  to  add  immense  personal  to  real  capital,  and  if 
the  tastes  for  polite  enjoyments  and  moderate  luxury  did  not  give 
to  labor  an  aliment  always  new.  But  labor,  in  order  to  arrive  at 
the  result  of  its  enterprises,  should  be  seconded  by  so  many  ad- 
vances of  funds,  and  such  a  persevering  continuance  of  efforts,  that 
all  success  would  escape  it  if  it  were  interrupted  or  troubled  by  the 
storms  of  disquieting  and  subversive  policy.  It  demands,  there- 
fore, stability  of  institutions,  as  the  source  of  confidence  and  the 
mother  of  credit. 

All  these  conditions  of  a  regular  and  prosperous  life  the  mon- 
archy procures  to  France ;  any  other  form  can  only  compromise 
them. 

Monarchy  is  the  government  of  great  states,  to  which  institu- 
tions made  for  duration  are  marvellously  suitable,  as  the  most  solid 
foundations  are  required  for  a  vast  edifice.  The  republic,  on  the 
contrary,  is  only  the  government  of  small  states,  if  we  except  the 
United  States  of  America,  which,  by  their  geographical  position, 
form  an  exception  to  all  rules,  which,  besides,  are  only  a  federa- 
tion ;  a  republic  has  never  been  able  to  establish  itself  except  in 
small  nations,  in  which  the  embarrassments  of  that  difificult  and 
complicated  form  of  government  are  corrected  by  the  small  extent 
of  territory  and  population. 

Ancient  Rome,  so  far  from  contradicting  this  rule,  fully  confirms 
it.  The  republic  was  only  in  the  city  and  for  the  city.  Beyond  it 
there  were  only  avaricious  masters  and  oppressed  subjects.  If  ever 
France  can  be  said  to  have  had  a  sort  of  neighborhood  with  the 
republic,  it  was  in  the  middle  ages,  when  the  republican  spirit,  ex- 
tinguished from  the  time  of  the  Caesars,  had  become  awakened  in 
a  part  of  Europe  ;  when  France  was  only  a  chess-board  of  almost 
independent  provinces;  and  when  the  feudal  principalities  were  in 
all  parts  menaced  by  the  communal  movement.  But  since  that 
movement  all  the  interior  action  of  France  has  removed  her  from 
the  republican  form.     She,  in  particular,  separated  from  it,  when 


AND  SELF-GOVERNMENT.  593 

she  gave  herself  a  united  territory  and  thirty-five  millions  of  inhab- 
itants living  under  the  same  laws,  in  the  same  country,  and  united 
by  an  infinite  chain  of  dependent  interests,  which  the  same  move- 
ment of  circulation  causes  to  terminate  in  a  sole  centre.  Such  a 
people  is  not  to  be  shaken,  as  were  the  citizens  of  a  single  city, 
even  if  called  Athens  or  Rome.  A  country  which  lives  by  its 
labor,  and  not  by  the  labor  of  slaves  and  presents  from  the  state, 
cannot  be  occupied  with  speeches  of  the  forum,  with  the  permanent 
agitation  of  comitia,  with  the  anxieties  of  politics  always  in  ebulli- 
tion. This  fever,  to  which  democratic  republics  give  the  name  of 
political  life,  cannot  with  impunity  be  communicated  to  a  nation 
whose  splendor  particularly  consists  in  the  pacific  development  of 
its  wealth,  and  in  the  regular  and  intelligent  activity  of  its  private 
interests. 

Our  fathers  learned  these  truths  in  the  rude  school  of  public  and 
private  misfortunes.  They  compose  all  the  interior  policy  of  the 
commencement  of  this  century.'  Why  should  incorrigible  innova- 
tors have  in  these  latter  times  inflicted  the  too  palpable  demonstra- 
tion of  them  upon  us?  We  have  seen  altars  raised  to  instability 
and  to  periodical  convulsions — the  two  plagues  of  the  social  body ; 
we  have  seen  laws  made  to  reduce  to  solemn  precepts  the  febrile 
and  terrible  crisis  which  may  ruin  a  people;  we  have  seen  the 
vessel  of  the  state  launched  on  an  unknown  sea,  without  a  fixed 
point  to  guide  itself  by,  without  an  anchor  to  cast  out,  and  no  one 
can  say  what  would  have  become  of  the  future  of  France,  if 
Providence,  watching  over  her,  had  not  raised  up  the  man  of 
intrepid  heart  who  extended  his  hand  to  her. 

France,  with  full  knowledge  of  what  she  is  doing,  intends  to 
return  to  her  natural  state  \  she  longs  to  find  again  her  real  posi- 
tion and  to  resume  her  equilibrium.  The  French  people,  in  its 
admirable  common  sense,  is  not  so  infatuated  with  its  superior 
qualities  that  it  is  not  aware  of  its  weak  points.  It  feels  itself  variable 
in  its  impressions,  prompt  to  be  worked  on,  and  easy  to  be  led 
away.  And  because  it  distrusts  the  rapidity  of  a  first  movement,  it 
seeks  a  fixed  point  in  its  institutions,  and  desires  to  be  retained  on 
a  stable  and  solid  basis.  The  French  democracy  has  sometimes 
been  compared  to  that  of  Athens.     We  have  no  objection  to  the 


»  See  the  speeches  delivered  in  the  Tribunal  on  the  return  to  monarchy  in 
1804. 

38 


594 


Oi\   CIVIL  LIBERTY 


comparison  as  far  as  politeness  and  elegance  of  mind  are  concerned, 
but  we  in  all  other  respects  utterly  disclaim  the  similitude.  The 
Greek  democracies  were  nothing  but  a  perpetual  flux  and  reflux, 
never  accepting  the  corrective  of  their  levity.  They  were,  besides, 
idle  and  grasping,  living  on  the  civic  oboli  and  distributions  of 
food.  On  the  other  hand,  the  French  democracy,  of  a  more  mas- 
culine and  more  haughty  character,  does  not  look  to  the  state  for 
the  care  of  its  well-being;  it  depends  on  its  own  efforts  for  support, 
and  most  joyfully  submits  to  the  eternal  law  of  God — daily  labor. 
Its  speculations  comprise  the  whole  world  ;  it  cultivates  the  earth 
with  its  free  hands ;  it  furrows  the  mighty  deep  with  its  vessels ;  it 
multiplies  its  industrial  creations,  engenders  capital,  and  renders  the 
future  tributary  to  its  able  and  immense  combinations.  When  a 
nation  thus  founds  its  enterprise  on  credit  and  durability,  when 
sometimes  not  less  than  half  a  century  is  necessary  to  it  to  reap  the 
benefit  of  its  operations,  it  is  not  the  institutions  of  a  day  that  can 
give  it  any  hope  of  their  success.  It  would  be  senseless  if  it  did 
not  desire  to  make  the  moving  sphere  of  its  interests  turn  round 
the  motionless  axis  of  a  monarchy. 

It  is  true  that  in  France  equality  is  an  object  of  absolute  worship, 
and  a  monarchy  has,  as  its  very  first  condition,  the  privileged 
existence  of  those  grand  and  rare  individualities  which  God  raises 
above  their  fellows  to  form  dynasties,  and  which  are  less  human 
beings  than  the  personification  of  a  people  and  the  concentrated 
radiation  of  a  civilization.  But  equality,  such  as  we  conceive  it  in 
France,  admits  without  jealousy  those  providential  grandeurs,  ren- 
dered legitimate  by  state  reasons,  below  which  it  finds  its  level. 
At  Rome^nd  Athens  equality  consisted  in  rendering  each  citizen 
admissible  to  the  supreme  authority ;  and  it  is  therefore  that  men 
considered  all  equality  at  an  end  when  Augustus  had  converted  the 
republic  into  a  monarchy.'  In  France  we  considered  it  as  saved 
and  confirmed  forever,  under  the  reign  of  the  emperor.  The  rea- 
son is,  that  in  this  country  of  equality  there  is  nothing  that  is  less 
supported  than  the  government  of  one's  equals ;  because  equality 
is  there  fully  satisfied  in  holding  everything  in  its  grasp,  places, 
credit,  wealth,  and  renown,  and  in  having  a  wide  and  open  road 
before  it  to  arrive  at  everything  except  that  extreme  point  of  power, 


'Tacitus:    "  Omnes,  exuti  equalitate,  jussa  principis  adspectare." — Annah 
i.  4. 


AND  SELF-  G O  VERNMENT. 


595 


that  inaccessible  summit,  which  the  care  of  the  public  tranquillity 
has  placed  high  above  all  private  competition.  By  that  the 
democracy  wonderfully  agrees  with  the  monarchy,  and  that  union 
is  so  much  the  more  solid  that  common  sense  unites  with  the  habits 
of  the  people  in  cementing  it. 

But  should  cavilling  minds,  believing  themselves  more  wise  than 
the  whole  country,  bring  forward  as  an  objection  to  the  desire 
expressed  for  the  hereditary  empire,  the  inconveniences  which 
minorities  and  bad  princes  may,  at  certain  intervals,  produce  in 
monarchical  states,  we  would  reply  that  all  human  institutions  con- 
tain within  themselves  certain  defects  and  weaknesses.  The  mon- 
archy has  not  the  privilege  of  perfection  ;  it  has  simply,  for  France, 
the  merit  of  an  incontestable  superiority  over  the  system  of  per- 
petual election,  which  only  offers  an  eternal  series  of  struggles  and 
hazards,  and  which  solves  one  difficulty  only  for  the  purpose  of 
immediately  leaving  another  in  suspense. 

Some  ancient  states,  believing  that  they  were  improving  on  the 
monarchical  system,  had  placed  in  sovereign  and  immovable  assem- 
blies that  element  of  stability  which  dynasties  represent.  But 
have  not  such  assemblies  also  had  their  moments  of  weakness? 
Does  not  their  history  exhibit  melancholy  instances  of  venality  or 
tyranny?  Has  not  their  baseness  given  them  insolent  and  seditious 
guardians?  And  in  the  point  of  view  of  moral  responsibility, 
which  is  one  of  the  great  checks  on  the  conscience,  there  is  not 
the  slightest  comparison  between  a  man  and  an  assembly.  In 
assemblies,  the  responsibility  of  the  body  effaces  that  of  the  indi- 
viduals ;  and  as  a  collective  responsibility  is  very  nearly  illusory,  it 
comes  to  pass  that  that  irresponsibility,  which  sometimes  constitutes 
the  force  and  independence  of  assemblies,  is  also  the  cause  of  their 
excesses.  In  a  prince,  on  the  contrary,  the  responsibility  is  un- 
divided and  inevitable,  and  presses  with  all  its  weight  on  the  side 
of  duty.  In  fine,  when  evil  creeps  into  a  sovereign  political  body, 
it  continues  there  as  a  precedent,  increases  as  a  tradition,  and  the 
thing  itself  can  only  be  kept  up  by  keeping  up  the  evil.  On  the 
contrary,  if  evil  glides  to  the  throne,  it  causes  alarm  only  by  tem- 
porary and  intermittent  perils,  which  are,  besides,  extenuated  by 
the  institutions  and  the  modifications  which  are  more  easily  efTected 
in  the  case  of  a  man  than  in  that  of  an  assembly.  The  feeble 
Louis  XIII.  was  followed  by  the  grand  Louis  XIV. ;  and,  besides. 


596  ON  CIVIL  LIBERTY 

Louis  XIII.  is,  in  the  eyes  of  posterity,  covered  by  his  minister, 
Richelieu. 

The  general  considerations  appear  to  us  to  prove  sufficiently  that 
the  national  sentiment  which  addresses  itself  to  you,  gentlemen,  as 
to  sage  mediators  between  the  people  and  the  prince,  is  neither  a 
frivolous  caprice  nor  a  fleeting  infatuation.  Behind  the  fascination 
of  a  great  name,  and  above  the  gratitude  which  is  felt  for  the  acts 
of  a  noble  and  patriotic  courage,  there  are  grand  thoughts,  power- 
ful interests,  and  an  admirable  intuitive  perception  of  the  public 
wants.  France,  gentlemen,  desires  to  have  the  life  of  a  great 
nation,  and  not  that  precarious  and  sickly  existence  which  wastes 
away  the  social  body.  During  the  last  four  years,  whilst  subjected 
to  perilous  experiments,  she  has  known  how  to  correct  by  her  good 
sense  the  evils  of  a  deplorable  situation.  But  it  is  necessary  that 
such  a  situation  should  be  brought  to  a  close.  Up  to  the  present 
time,  she  had  been  able  to  find,  in  the  midst  of  the  tempests  which 
assailed  her,  only  transitory  gleams  of  safety,  on  which  no  future 
prosperity  could  possibly  be  based.  At  present,  she  is  about  to 
enter  the  port,  to  found,  by  means  of  the  fortunate  pilot  whom  she 
greets  with  joy,  the  edifice  of  her  prosperity  on  the  solid  ground 
of  monarchy. 

Let  us  now  look  to  the  details  of  the  draft  of  the  senatus-con- 
sultum. 

Louis  Napoleon  will  take  the  name  of  Napoleon  III.  It  is  that 
name  which  re-echoed  in  the  acclamations  of  the  people ;  it  is  the 
name  which  was  inscribed  on  the  triumphal  arches  and  trophies. 
We  do  not  specially  select  it ;  we  merely  accept  it  from  a  natural 
and  spontaneous  election.  It  has,  besides,  that  profound  good 
sense  which  is  always  to  be  met  with  in  the  wonderful  instincts  of 
the  people.  It  is  a  homage  to  Napoleon  I.,  whom  the  people  never 
forgets ;  and  it  is  a  pious  remembrance  for  his  youthful  son,  who 
was  constitutionally  proclaimed  emperor  of  the  French,  and  whose 
reign,  short  as  it  was,  has  not  been  effaced  by  the  obscure  existence 
of  the  exile.  It  solves  for  the  future  the  question  of  succession, 
and  signifies  that  the  empire  will  be  hereditary  after  Louis  Napo- 
leon, as  it  has  been  for  himself.  In  fine,  it  connects  the  political 
phase  to  which  we  owe  our  safety  with  the  glorious  name  which 
was  also  the  safety  of  past  times. 

And  yet,  by  the  side  of  the  traditional  element,  contemporary 
events  preserve  their  proper  value  and  their  peculiar  signification. 


AND  SELF-GOVERNMENT.  597 

If  Louis  Napoleon  is  called  on  at  present  to  resume  the  work  of 
his  uncle,  it  is  not  merely  because  he  is  the  heir  of  the  emperor, 
but  because  he  deserves  to  be  so ;  it  is  on  account  of  his  devoted- 
ness  to  France,  and  of  that  spontaneous  and  personal  action  which 
has  rescued  the  country  from  the  horrors  of  anarchy.  It  is  not 
sufficient  for  him  to  be  the  heir  of  the  emperor ;  he  must  be  again 
elected,  for  the  third  time,  by  the  people.  Thus  the  succession  and 
the  election  will  be  in  accord  to  double  his  force,  the  modern  fact 
rendering  the  old  one  young  and  vigorous  by  the  puissance  of  a 
reiterated  consent  and  a  second  contract. 

The  senatus-consultum  next  invests  Louis  Napoleon  with  the 
right  to  adopt  an  heir,  in  default  of  a  direct  successor.  Adoption, 
which  is  a  common  right  in  private  families,  cannot  be  an  excep- 
tion in  dynastic  families ;  for,  when  no  natural  heir  exists,  it  is  a 
principle  in  public  law  that  the  choice  of  the  monarch  belongs 
to  the  people.  But  that  rule  is  that  of  ordinary  times,  and  cannot 
suit  in  an  absolute  manner  an  order  of  things  which  again  resumes 
a  new  course  after  a  long  interruption,  and  in  the  midst  of  the  most 
extraordinary  circumstances. 

Louis  Napoleon,  the  depositary  of  the  confidence  of  the  people, 
charged  by  it  to  draw  up  a  constitution,  can,  on  infinitely  stronger 
grounds,  receive  the  mandate  to  provide  for  certain  eventualities, 
and  to  prevent  certain  crises  in  which  that  constitution  might 
perish.  The  strokes  of  nature  have  been  often  terrible  in  reign- 
ing families,  and  have  set  at  naught  the  councils  of  wisdom.  The 
French  people  will  not  imagine  that  it  makes  too  great  a  sacri- 
fice of  its  rights  in  abandoning  itself  once  more  to  the  prudence 
of  the  prince  whom  it  has  made  the  arbiter  of  its  destinies.  This 
provision,  besides,  is  borrowed  from  the  imperial  constitution. 
The  empire  which  revives  ought  not  to  be  less  powerful  in  its 
means  than  was  the  empire  at  its  commencement.  And  in  order 
to  remain  within  the  letter  and  the  spirit  of  that  precedent,  the 
senatus-consultum  proposes  to  you  not  to  admit  of  such  adoption, 
except  for  the  male  descendants,  natural  and  legitimate,  of  the 
brothers  of  Napoleon  I.  The  right  of  unlimited  adoption  would 
be  in  manifest  contradiction  with  the  popular  wish  for  the  re- 
establishment  of  the  empire,  which  is  the  guiding  star  of  our  de- 
liberations. In  fact,  the  empire  is  inseparable  from  the  name  of 
Bonaparte ;  and  cannot  be  conceived  without  a  member  of  that 
family  with  which  the  new  form  of  the  monarchy  was  stipulated  in 


598 


ON  CIVIL  LIBERTY 


France.  Everything  ought  to  remain  consistent  in  the  work  which 
we  are  considering. 

But  above  that  combination,  solely  of  a  political  character, 
France  places  a  hope  which  more  than  anything  constitutes  her 
faith  in  the  future ;  and  that  is,  that,  at  no  distant  period,  a  wife 
will  take  her  place  on  the  throne  which  is  about  to  be  raised 
and  will  give  to  the  emperor  scions  worthy  of  his  great  name 
and  of  this  great  country.  That  debt  was  imposed  on  the  prince 
on  the  day  when  the  cries  of  "Vive  I'Empereur"  hailed  him  on 
his  passage ;  and  he  will  accept  it  virtually  but  necessarily  the 
day  when  the  crown  will  be  placed  on  his  head.  For,  since  the 
empire  is  established  with  a  view  to  the  future,  it  ought  to  carry 
with  it  all  the  legitimate  consequences  which  preserve  that  future 
from  uncertainty  and  shocks. 

In  default  of  the  direct  line  and  of  the  adoptive  line,  the  case 
of  succession  in  the  collateral  line  must  be  provided  for.  On  that 
point  we  propose  to  you  a  clause,  by  which  the  people  should 
confer  on  Louis  Napoleon  the  right  of  regulating  by  an  organic 
decree  that  order  of  succession  in  the  Bonaparte  family.  By  that 
means,  our  senatus-consultum  will  remain  more  perfectly  in  accord 
with  the  popular  wish,  which  in  its  unlimited  confidence  has  placed 
in  Louis  Napoleon's  hands  the  destinies  of  the  country;  it  will 
likewise  be  more  in  conformity  with  the  political  changes  which 
France  has  entered  into  since  2d  December.  The  greatest  polit- 
ical genius  of  Italy,  in  the  sixteenth  century,  was  accustomed  to 
say,  in  those  rare  and  solemn  moments  in  which  the  question  is  to 
found  a  new  state,  that  the  will  of  a  single  man  was  indispensable. 
That  is  what  the  nation  comprehended  so  admirably  when  it 
remitted  to  Louis  Napoleon  the  task  of  drawing  up  the  constitu- 
tion which  governs  us.  At  present,  that  a  capital  modification  is 
taking  place  in  one  of  the  very  foundations  of  that  constitution,  it 
appears  natural  and  logical  to  again  confer  on  Louis  Napoleon  a 
portion  of  the  constituent  power,  in  order  that,  in  the  special 
point  which  concerns  most  intimately  the  interests  of  the  dynasty 
of  which  the  nation  declares  him  the  head,  he  may  fix  on  such  pro- 
visions as  appear  to  him  best  appropriated  to  the  public  interest 
and  the  interest  of  the  monarch.  For  his  family,  as  well  as  for  the 
country,  Louis  Napoleon  is  the  man  of  an  exceptional  situation, 
and  no  fear  must  be  entertained  of  adding  to  his  power,  in  order 
that,  with  the  assent  of  all,  he  may  settle  it  by  the  authority  of  a 


AND  SELF-GOVERAMENT.  599 

single  person.  We,  therefore,  propose  to  you,  after  a  conference 
with  the  organs  of  the  government,  which  has  led  to  unanimity 
of  opinion,  an  article  thus  worded:  "Art.  4.  Louis  Napoleon 
Bonaparte  regulates,  by  an  organic  decree  addressed  to  the  senate 
and  deposited  in  the  archives,  the  order  of  succession  to  the  throne 
in  the  Bonaparte  family,  in  case  he  should  not  leave  any  direct  or 
adopted  heir." 

It  is  not  necessary  for  us  to  say  to  you  that  in  this  system  the 
formula  to  be  submitted  to  the  French  people  ought  to  contain  an 
express  mention  of  that  delegation.  It  will  be  necessary,  accord- 
ing to  the  constitution,  that  the  French  people  be  called  on  to  de- 
clare whether  it  desires  or  not  to  invest  Louis  Napoleon  with  the 
power  which  we  conceive  ought  to  be  conferred  on  him. 

After  having  thus  spoken  of  the  succession  to  the  imperial 
crown,  the  senatus-consultum  carries  the  attention  to  the  condition 
of  the  family  of  the  emperor.  It  divides  it  into  two  parts  :  i,  the 
imperial  family,  properly  so  called,  composed  of  the  persons  who 
may  by  possibility  be  called  to  the  throne,  and  of  their  descend- 
ants of  both  sexes ;  and  2,  of  the  other  members  of  the  Bonaparte 
family. 

The  situation  of  the  princes  and  princesses  of  the  imperial 
family  is  to  be  regulated  by  senatus-consulta ;  and  they  cannot 
marry  without  the  emperor's  consent.  Article  6  pronounces  for  any 
infraction  of  this  regulation  of  public  interest  the  penalty  of 
losing  all  right  to  the  succession,  Avith  the  proviso,  however,  that 
in  case  of  the  dissolution  of  the  marriage  by  the  death  of  the  wife, 
without  issue,  the  right  is  at  once  recovered. 

As  to  the  other  members  of  the  Bonaparte  family,  who  compose 
the  civil  family,  it  is  to  the  emperor,  and  not  any  longer  to  senatus- 
consulta,  that  it  appertains  to  fix  by  statutes  their  titles  and  situ- 
ation. It  is  useless  to  insist  on  this  distinction,  as  it  is  explained 
by  the  difference  which  exists  between  the  civil  family  and  that 
uniting  in  itself  the  double  character  of  civil  family  and  political 
family. 

We  have  also  to  request  your  special  attention  to  the  final  para- 
graph of  Article  6,  which  confers  on  the  emperor  full  and  entire 
authority  over  all  the  members  of  his  family.  These  special 
powers  are  called  for  by  the  gravest  considerations,  and  belong  to 
the  right  generally  instituted  for  reigning  families.  Princes  are 
placed    in  so  elevated    a  position    by   public    right  and    national 


000  ON  CIVIL   LIBERTY 

interest,  that  they  are,  in  many  respects,  out  of  the  pale  of  the 
common  law.  The  greater  their  privileges  are,  the  more  their 
duties  are  immense  towards  the  country.  Montesquieu  has  said : 
"It  is  not  for  the  reigning  family  that  the  order  of  succession  is 
established,  but  because  it  is  for  the  interest  of  the  state  that  there 
should  be  a  reigning  family."  They  belong,  therefore,  to  the  state 
by  stricter  ties  than  other  citizens,  and  on  account  even  of  their 
very  greatness  must  be  retained  in  a  sort  of  perpetual  ward-dom, 
under  the  guardianship  of  the  emperor,  the  defender  of  their  dig- 
nity, the  appreciator  of  their  actions,  and  serving  to  them  as  father 
as  much  as  guardian,  in  order  to  preserve  to  the  nation  this  patri- 
mony in  fact. 

If  these  reasons  do  not  apply  in  all  their  extent  to  the  members 
of  the  private  family,  there  are  others  of  not  less  importance, 
which  are  drawn  from  the  conjoint  responsibility  imposed  by  a  name 
which  is  the  property  of  the  nation,  as  much  as  of  the  persons 
who  have  the  honor  of  bearing  it. 

Besides,  several  of  these  persons  have  the  privilege  of  being 
the  only  ones  in  the  state  that  the  emperor  can  place  by  adoption 
in  the  rank  of  the  persons  who  may  succeed  to  the  crown.  But 
there  is  no  public  privilege  which  ought  not  to  be  paid  for  by 
duties  specially  created  to  justify  its  necessity,  and  to  co-operate 
in  the  object  of  its  establishment. 

There  is  another  point  which  it  is  sufficient  for  us  to  remind  you 
of — the  maintenance  of  the  Salic  law  in  the  imperial  dynasty.  In 
France,  the  Salic  law  is,  so  to  speak,  incorporated  with  the  mon- 
archy, and,  although  its  origin  goes  back  to  the  remotest  periods, 
it  has  so  completely  penetrated  into  our  way  of  thinking,  and  is  so 
completely  in  accord  with  the  rules  of  French  policy,  that  it  is  in- 
separable from  all  transformations  in  the  monarchical  principle. 

Finally,  gentlemen,  the  senatus-consultum  provides  for  the  case 
in  which  the  throne  should  be  vacant :  "if  ever  the  nation  should 
be  so  unfortunate  as  to  experience  this  affliction,"  (to  use  the  lan- 
guage of  the  celebrated  edict  of  July,  171 7,)  "it  would  be  for  the 
nation  itself  to  repair  it."  Article  5  formally  recognizes  this  fun- 
damental, essential,  and  inalienable  right.  At  the  same  time  it 
provides  for  the  means  of  preparing  a  choice  worthy  of  the  French 
people,  by  its  prudence  and  maturity.  In  consequence,  an  or- 
ganic senatus-consultum,  proposed  to  the  senate  by  the  ministers 
formed  into  a  council  of  government,  with  the  addition  of  the 


AND   SELF-GOVERNMENT.  6oi 

president  of  the  senate,  the  president  of  the  legislative  body,  and 
the  president  of  the  council  of  state,  shall  be  submitted  to  the  free 
acceptance  of  the  people,  and  will  give  to  France  a  new  emperor. 

Siich,  gentlemen,  are  the  principal  provisions  of  the  senatus- 
consultum,  now  submitted  to  you  for  consideration,  and  which  will 
prepare  the  august  contract  of  the  nation  with  its  chief.  Should 
you  adopt  it,  you  will  order  by  a  concluding  article,  in  virtue  of 
the  constitution,  that  the  people  be  consulted  concerning  the  re- 
establishment  of  the  imperial  dignity  in  the  person  of  Louis  Napo- 
■leon,  with  the  succession  of  which  we  have  just  explained  to  you 
the  combinations.  But,  gentlemen,  we  may  affirm,  whilst  bending 
at  present  before  a  public  will  which  only  asks  for  an  occasion  to 
burst  forth  afresh,  that  the  empire  is  accomplished.  And  that  em- 
pire, the  dawn  of  which  has  lighted  up  the  path  of  Louis  Napoleon 
in  the  departments  of  the  south,  rises  over  France,  surrounded 
by  the  most  auspicious  auguries.  Everywhere  hope  revives  in 
men's  minds ;  everywhere  capital,  restrained  by  the  uncertainty  of 
the  future,  rushes  with  ardor  into  the  channels  of  business ;  and 
everywhere  the  national  sap  circulates,  and  vivifies  to  produce  the 
most  abundant  fruits. 

This  reign,  gentlemen,  will  not  be  cradled  in  the  midst  of  arms 
and  in  the  camp  of  insurgent  praetorian  guards.  It  is  the  work  of 
the  national  feeling,  most  spontaneously  expressed  ;  it  has  been 
produced  in  our  commercial  towns,  in  our  ports,  in  the  most  peace- 
ful centres  of  agriculture  and  manufactures,  and  in  the  midst  of 
the  joy  of  an  affectionate  people ;  it  will  consequently  be  the 
Effipire  of  Peace — that  is  to  say,  the  revolution  of '89,  without  its 
revolutionary  ideas,  religion  without  intolerance,  equality  without 
the  follies  of  equality,  love  for  the  people  without  socialist  charla- 
tanism, and  national  honor  without  the  calamities  of  war.  Ah  !  if 
the  great  shade  of  the  emperor  should  cast  a  glance  at  this  France 
which  he  loved  so  much,  it  would  thrill  with  joy  at  beholding  the 
gloomy  predictions  of  St.  Helena,  at  one  moment  so  near  being 
realized,  totally  disproved.  No  ;  Europe  will  not  be  delivered  up 
to  disorder  and  anarchy  !  No  ;  France  will  not  lose  the  grandeur 
of  her  institutions,  and  it  is  the  ideas  of  Napoleon  directed  towards 
peace  by  a  generous-minded  prince,  which  will  be  the  safeguard  of 
civilization. 


6o2  ON  CIVIL  LIBERTY 


SENATUS  -  CONSULTUM. 

In  the  month  of  November,  1852,  the  senate  adopted  the  follow- 
ing senatus-consultum  : 

SENATUS-CONSULTUM. 

Proposition  to  modify  the  Constitution,  in  conformity  with  Articles 

31  and  32. 

Art.  I.  The  imperial  dignity  is  re-established.  Louis  Napoleon 
Bonaparte  is  emperor,  under  the  name  of  Napoleon  III. 

Art.  2.  The  imperial  dignity  is  hereditary  in  the  direct  and 
legitimate  issue  of  Louis  Napoleon  Bonaparte,  from  male  to  male 
in  the  order  of  primogeniture,  and  with  perpetual  exclusion  of 
women  and  their  descendants. 

Art.  3.  Louis  Napoleon  Bonaparte,  in  default  of  a  male  child, 
may  adopt  the  children  and  legitimate  descendants  in  the  male  line 
of  the  brothers  of  Napoleon  L 

The  forms  of  adoption  shall  be  regulated  by  a  senatus-consul- 
tum. 

If,  after  the  adoption,  male  children  of  Louis  Napoleon  shall 
be  born,  his  adoptive  sons  cannot  succeed  him,  except  after  his 
own  legitimate  descendants. 

The  successors  of  Louis  Napoleon,  and  their  descendants,  cannot 
adopt. 

Art.  4.  Louis  Napoleon  regulates,  by  an  organic  decree  ad- 
dressed to  the  senate  and  deposited  in  its  archives,  the  order  of 
succession  on  the  throne  in  the  Bonaparte  family,  in  case  he  should 
not  leave  any_^  direct  legitimate  or  adopted  heir. 

Art.  5.  In  default  of  any  legitimate  or  adoptive  heir  of  Louis 
Napoleon  Bonaparte,  and  of  successors  in  collateral  line  who  may 
derive  their  right  from  the  organic  decree  above  mentioned,  a 
senatus-consultum,  proposed  to  the  senate  by  the  ministers,  formed 
into  a  council  of  government,  with  the  addition  of  the  actual 
presidents  of  the  senate,  the  legislative  corps,  and  of  the  council 
of  state,  and  submitted  for  adoption  to  the  people,  appoints  the 
emperor,  and  regulates  in  his  family  the  hereditary  order  from 
male  to  male,  to  the  perpetual  exclusion  of  women  and  their 
descendants. 


AND  SELF-GOVERNMENT.  603 

Until  the  election  of  the  new  emperor  shall  be  consummated, 
the  affairs  of  the  state  are  governed  by  the  actual  ministers,  who 
shall  form  themselves  into  a  council  of  government  and  deliberate 
by  a  majority  of  votes. 

Art.  6.  The  members  of  the  family  of  Louis  Napoleon  eventu- 
ally called  to  succeed  him,  and  their  descendants  of  both  sexes, 
form  a  part  of  the  imperial  family.  A  senatus-consultum  regu- 
lates their  position.  They  cannot  marry  without  the  authorization 
of  the  emperor.  Their  marriage  without  this  authorization  de- 
prives of  the  right  of  inheritance  as  well  him  who  contracts  the 
marriage  as  his  descendants. 

Nevertheless,  if  there  are  no  children  of  such  a  marriage,  and 
the  wife  dies,  the  prince  having  contracted  such  a  marriage  re- 
covers his  right  of  inheritance. 

Louis  Napoleon  fixes  the  titles  and  the  condition  of  the  other 
members  of  his  family. 

The  emperor  has  plenary  authority  over  all  the  members  of  his 
family.  He  regulates  their  duties  and  their  obligations  by  statutes 
which  have  the  force  of  laws. 

Art.  7.  The  constitution  of  the  15th  of  January,  1852,  is  main- 
tained in  all  those  dispositions  which  are  not  contrary  to  the 
present  senatus-consultum ;  it  cannot  be  modified  except  in  the 
forms  and  by  the  means  there  prescribed. 

Art.  8.  The  following  proposition  shall  be  presented  for  the 
acceptation  of  the  people  in  the  forms  determined  by  the  decrees 
of  the  2d  and  4th  of  December,   1851 : 

i  "The  people  wills  the  re-establishment  of  the  imperial  dignity  in 
the  person  of  Louis  Napoleon  Bonaparte,  with  inheritance  in  direct 
legitimate  or  adoptive  descendants,  and  gives  him*  the  right  to 
regulate  the  order  of  succession  to  the  throne  in  the  Bonaparte 
family  in  the  manner  described  in  the  senatus-consultum  of  the  7th 
of  November,  1S52." 

The  senate  adopted  this  senatus-consultum  by  eighty-six  votes 
of  eighty-seven  senators. 

More  than  eight  millions  of  people  voted  yes,  according  to  the 
official  publications. 

"All  Frenchmen  of  the  age  of  twenty-one,  in  possession  of  their 
civil  and  political  rights,"  were  called  upon  to  vote  by  a  decree  of 
some  length,  of  November  7th,  1852. 

The  paper  on  elections,  the  first  of  this  Appendix,  contains  the 


604     ON  CIVIL    LIBERTY  AND  SELF-GOVERNMENT. 

details  of  this  and  other  votes,  as  well  as  the  view  of  the  author 
regarding  them. 

In  addition  to  the  papers  here  given,  it  ought  to  be  remembered 
that  the  senate  can  decree  organic  laws,  and  thus  a  senatus-con- 
sultum  has  been  passed,  according  to  which  the  legislative  corps 
(already  so  denuded  of  power  and  influence)  is  deprived  of  the 
right  to  vote  on  the  single  items  of  the  budget.  It  must  adopt  or 
reject  the  budgets  of  each  ministry  as  a  whole.  This  means,  of 
course,  that  it  must  adopt  the  whole — for  government  would  neces- 
sarily be  brought  to  a  stop  if  the  entire  budget  of  a  ministry  were 
rejected  ;  and  the  executive  government  would  simply  order  again 
the  soldiery  to  clear  the  legislative  hall,  assume  the  dictatorial 
power,  and  make  the  people  rectify  the  coup. 


APPENDIX  XVI. 


LETTER  OF  THE  FRENCH  MINISTER  OF  THE  INTERIOR, 
MR.  DE  MORNY,  ADDRESSED  TO  THE  PREFECTS  OF 
THE   DEPARMENTS   IN  THE  YEAR   1852. 

The  minister  of  the  interior  addressed  the  following  circular  to 
the  prefects  of  the  departments  : 

"Monsieur  le  Prefet:  You  will  shortly  have  to  proceed  to 
the  elections  of  the  legislative  body.  It  is  a  grave  operation, 
which  will  be  either  a  corollary  or  a  contradiction  of  the  vote  of 
the  20th  December,  according  to  the  employment  which  you  make 
of  your  legitimate  influence.  Bear  well  in  mind  that  universal 
suffrage  is  a  new  and  unknown  element,  easy  for  a  glorious  name 
to  make  the  conquest  of,  unique  in  history,  representing  in  the 
eyes  of  the  populations  authority  and  power,  but  very  difficult  to 
fix  on  secondary  individualities ;  consequently,  it  is  not  by  follow- 
ing former  errors  that  you  will  succeed.  I  desire  to  inform  you 
of  the  views  of  the  head  of  the  state.  You  perceive  that  the 
constitution  has  aimed  at  avoiding  all  the  theatrical  and  dramatic 
part  of  the  assemblies,  by  interdicting  the  publication  of  the 
speeches  delivered  ;  in  that  way  the  members  of  those  assemblies, 
not  being  occupied  with  the  effect  which  their  words  in  the  tribune 
are  to  produce,  will  think  more  of  carrying  on  seriously  the  affairs 
of  their  country.  Thq  electoral  law  will  pronounce  on  the  in- 
compatibilities. The  situation  of  public  functionaries  in  a  political 
assembly  is  always  a  very  delicate  matter,  as  in  voting  with  the 
government  they  lower  their  proper  character,  and  in  voting 
against  it  they  weaken  the  principle  of  authority.  The  exclusion 
of  functionaries,  and  the  suppression  of  all  indemnity,  must  neces- 
sarily limit,  in  a  country  where  fortunes  are  so  divided  as  in  ours, 
the  number  of  men  who  will  be  willing  and  able  to  fulfil  such 
duties.     Nevertheless,  as  the  government  is  firmly  decided  never 

605 


6o6  ON  CIVIL  LIBERTY 

to  make  use  of  corruption,  direct  or  indirect,  and  to  respect  the 
conscience  cf  every  man,  the  best  wneans  of  preserving  to  the 
legislative  body  the  confidence  of  the  populations  is  to  call  to  it 
men  perfectly  independent  by  their  situation  and  character.  When 
a  man  has  made  his  fortune  by  labor,  manufactures,  or  agriculture, 
if  he  has  been  occupied  in  improving  the  position  of  his  work- 
men, if  he  has  rendered  himself  popular  by  a  noble  use  of  his 
property,  he  is  preferable  to  what  is  conventionally  called  a  polit- 
ical man,  for  he  will  bring  to  the  preparation  of  the  laws  a  practical 
mind,  and  will  second  the  government  in  its  work  of  pacification 
and  re-edification.  As  soon  as  you  shall  have  intimated  to  me, 
in  the  conditions  indicated  above,  the  candidates  who  shall  appear 
to  you  to  have  the  most  chance  of  obtaining  a  majority  of  votes, 
the  government  will  not  hesitate  to  recommend  them  openly  to  the 
choice  of  the  electors.  Hitherto,  it  has  been  the  custom  in  France 
to  form  electoral  committees  and  meetings  of  delegates.  That 
system  was  very  useful  when  the  vote  took  place  au  scrutin  de  liste. 
The  sci-iitin  de  liste  created  such  confusion,  and  such  a  necessity 
for  coming  to  an  understanding,  that  the  action  of  a  committee 
was  indispensable ;  but  now  these  kind  of  meetings  would  be 
attended  with  no  advantage,  since  the  election  will  only  bear  on 
one  name;  it  would  only  have  the  inconvenience  of  creating 
premature  bonds,  and  appearances  of  acquired  rights  which  would 
only  embarrass  the  people,  and  deprive  them  of  all  liberty.  You 
will,  therefore,  dissuade  the  partisans  of  the  government  from 
organizing  electoral  committees.  Formerly,  when  the  suffrage  was 
restricted,  when  the  electoral  influence  was  divided  among  a  few 
families,  the  abuse  of  this  influence  was  most  shameful.  A  few 
crosses,  little  merited,  and  a  few  places,  could  always  secure  the 
success  of  an  election  in  a  small  college.  It  was  very  natural  that 
this  abuse  should  cause  great  dissatisfaction,  and  that  the  govern- 
ment should  be  called  on  to  abstain  from  any  ostensible  inter- 
ference. Its  action  and  its  preferences  were  then  occult,  and  for 
that  very  reason  compromised  its  dignity  and  its  authority.  But 
by  what  favors  could  the  government  be  now  supposed  capable  of 
influencing  the  immense  body  of  the  electors ?  By  places?  The 
whole  government  of  France  has  not  establishments  vast  enough 
to  contain  the  population  of  one  canton.  By  money?  Without 
speaking  of  the  honorable  susceptibilities  of  the  electors,  the  whole 


AND  SELF-GOVERNMENT.  ^q-j 

public  treasury  would  not  be  sufficient  for  such  a  purpose.  You 
will  remember  to  what  the  result  of  the  efforts  of  the  government 
was  reduced  on  the  loth  December,  1848,  in  favor  of  the  candidate 
to  the  presidency  who  was  then  in  power.  With  universal  suffrage 
there  is  but  one  powerful  spring,  which  no  human  hand  can  restrain 
or  turn  from  the  current  in  which  it  is  directed,  and  that  is  public 
opinion  ;  that  imperceptible  and  indefinable  sentiment  which  aban- 
dons or  accompanies  governments,  without  their  being  able  to 
account  for  it,  but  which  is  rarely  wrong  in  doing  so ;  nothing 
escapes  it,  nothing  is  indifferent  to  it ;  it  appreciates  not  only  acts, 
but  divines  tendencies ;  it  forgets  nothing,  it  pardons  nothing,  be- 
cause it  has,  and  can  have,  but  one  moving  power — the  self-interest 
of  each ;  it  is  alive  to  all,  from  the  great  policy  which  emanates 
from  the  chief  of  the  state  to  the  most  trivial  proceedings  of  the 
local  authorities,  and  the  political  opinion  of  a  department  depends 
more  than  is  generally  believed  on  the  spirit  and  conduct  of  its 
administration.  For  a  long  time  past  the  local  administrations 
have  been  subordinate  to  parliamentary  exigencies ;  they  occupied 
themselves  more  in  pleasing  some  influential  men  in  Paris  than 
in  satisfying  the  legitimate  interests  of  the  communes  and  the 
people.  These  days  are  happily,  it  may  be  said,  at  an  end.  Make 
all  functionaries  thoroughly  understand  that  they  must  carefully 
occupy  themselves  with  the  interests  of  all,  and  that  he  who  must 
be  treated  with  the  greatest  zeal  and  kindness  is  the  humblest  and 
the  weakest.  The  best  of  policies  is  that  of  kindness  to  persons, 
and  facility  for  interests — and  that  functionaries  shall  not  suppose 
themselves  created  for  purposes  of  objection,  embarrassment,  and 
delay,  when  they  are  so  for  the  sake  of  dispatch  and  regularity. 
If  I  attach  so  much  importance  to  these  details,  it  is  because  I 
have  remarked  that  inferior  agents  often  believe  that  they  increase 
their  importance  by  difficulties  and  embarrassments.  They  do 
not  know  what  maledictions  and  unpopularity  they  bring  down 
on  the  central  government.  This  administrative  spirit  must  be 
inflexibly  modified ;  that  depends  on  you ;  enter  firmly  on  tliat 
path.  Be  assured  that  then,  instead  of  seeing  enemies  in  the 
government  and  local  administration,  the  people  will  only  con- 
sider them  a  support  and  help.  And  when  afterwards  you,  in  the 
name  of  this  loyal  and  paternal  government,  recommend  a  candi- 
date to  the  choice  of  the  electors,  they  will  listen  to  your  voice  and 


6o8      ON  CIVIL  LIBERTY  AND  SELF-GOVERNMENT. 

follow  your  counsel.  All  the  old  accusations  of  oppositions  will 
fall  before  this  new  and  simple  line  of  policy,  and  people  in 
France  will  end  by  understanding  that  order,  labor,  and  security 
can  only  be  established  in  a  durable  manner  in  a  country  under  a 
government  listened  to  and  respected. 

"Accept,  &c. 

"A.  DE  MORNY." 


INDEX. 


Aberdeen,  Lord,  on  the  importance  of 
the  people  moving  before  govern- 
ment, 126. 

Absent  persons,  penally  tried,  71. 

Absolute  democracy,  no  connection 
with  liberty,  214. 

Absolute  monarchs  often  allow  bold 
discussions  on  liberty,  156. 

Absolutism,  enlightened,  not  the  best 
government,  26;  always  spurns  fun- 
damental laws,  274;  item,  division 
of  power,  275  ;  resorts  to  transporta- 
tion, favors  extraordinary  courts, 
275  ;  generally  abhors  publicity,  276  ; 
precedent,  277  ;  copies  foreign  mea- 
sures, 296 ;  popular,  373 ;  all  abso- 
lutism has  an  element  of  communism, 

381- 

Acclamation,  decrees  of,  190. 

Accumulation  of  single  fortunes  does  not 
prove  general  wealth,  391. 

Accusation,  trial  by,  218  and  sequ. 

Accusatorial  trial,  218  and  sequ. 

Adams,  John,  opinion  that  common  law 
is  a  necessary  element  of  the  liberty 
of  the  United  States,  211. 

Administrative  judgments  in  France, 
107,  217. 

Advocate,  ethics  of,  240;  independence 
of,  239  and  sequ ;  is  part  of  the  ad- 
ministration of  justice,  243. 

Age,    present,    its    political    character, 

17- 

Alexander  the  Great,  209,  210. 

American  liberty  founded  on  English, 
21 ;  cannot  be  understood  without 
English  liberty,  22,  256  and  sequ ; 
characterized  by  representative  re- 
publicanism and  federalism,  258; 
what  it  consists  in,  259  and  sequ. 


Americans,  of  the  Anglican  race,  21 ; 

their  task  regarding  civil  liberty,  ibid.; 

more  inclined  to  abstract  rights  than 

the  English,  261. 
Amyot's  translation  of  Plutarch,  great 

influence  in  France,  372,  note. 
Anaxarchus,  208. 
Ancient  liberty,  43  and  sequ. 
Ancient  philosophers,  why  they  praise 

Sparta,  365. 
Anglican  liberty,  40;  its  elements,  51 

and  sequ ;  how  to  find  out  in  what 

it  consists,  52. 
Anglican  polity,  Turgot's  opinion  on  it, 

l?5- 

Anti-corn-law  league,  125. 

Antiquity,  its  main  differences  from 
modern  times,  360. 

Appropriations  should  be  short,  145. 

Aristotle,  greater  than  Alexander,  252. 

Arms,  the  right  of  bearing,  120. 

Army,  must  be  under  the  control  of  the 
legislature,  1 14  and  sequ.  In  Eng- 
land, and  by  the  Constitution  of  the 
United  States,  ibid.  President  of 
the  United  States  is  chief  com- 
mander, but  cannot  enlist  soldiers 
without  congress,  1 15.  Declaration 
of  Independence  concerning  British 
anny,  ibid.  Standing  aiTnies,  116 
and  sequ.  In  France,  its  extent 
and  power,  118;  French  army  votes, 
like  the  citizens,  119.  Armies  ought 
not  to  possess  the  right  of  petition- 
ing, 119;  always  favored  by  despots, 

273- 

Arnold,  Dr.  Thomas,  definition  of  In- 
stitution, 303. 

Articles  in  addition  to  the  Constitution 
of  the  United  States,  526. 
39  609 


6io 


INDEX. 


Articles  of  Confederation  and  Perpetual 

Union,  in  full,  503  and  sequ. 
Association,  right  of,  and    importance 

of,  124. 
Athenian    prosecutor    punished    if    he 

wholly  failed  in  his  prosecution,  77. 
Attainder   and  corruption  of  blood,  in 

England,  102. 
Authentic  interpretation,  208. 
Autonomy    and    Self-Government,    38 

and  note. 

Bacon,  quotations  from,  23,  24. 

Bail.  67  and  sequ.  Advantages  and 
disadvantages,  68. 

Ballot,  universally  established  in  the 
United  States,  262.  Has  not  the 
effect  which  the  English  expect,  263. 

Batis,  210. 

Bavarian  code,  against  interpretation 
by  courts,  206. 

Beccaria  against  pardoning,  434. 

Bechard,  Lois  Municipales  des  Repub- 
liques  de  la  Suisse  et  des  Etats-Unis, 
321,  note. 

Bentham,  Jeremy,  Tactics  of  Legislative 
Assemblies,  192. 

Beranger,  opinion  on  French  justice,  75. 

Bernard,  Frenchman,  accessory  before 
the  fact,  of  Orsini,  57. 

Bicameral  system,  193. 

Bill  of  Rights,  in  full,  492  and  sequ. 

Billeting,  debate  in  commons  on,  in 
1856,  116,  note. 

Blanc,  Louis,  one  of  the  representatives 
of  the  French  school,  367,  note;  and 
present  imperialists,  equally  for  uni- 
versal suffrage,  157,  note. 

Bodinus,  his  definition  of  liberty,  32. 
Copy  of  Bodinus  used  by  Jefferson, 
32,  note. 

Bonner's  translation  of  De  Tocque- 
ville's  Ancien  Regime,  254. 

Bossuet,  for  centralized  power,  371. 

Bourgeoisie  derided,  382. 

Brilliant  men,  or  events,  not  the  most 
influential,  252. 

Brougham,  Lord,  on  discussing  peti- 
tions, 122,  note;  on  the  organization 
of  upper  house,  198 ;  ethics  of  the 
advocate,  241,  note;  on  courts  of 
arbitration,  281,  note;  on  German 
empire,  356,  note. 

Bunscr.,  Baron,  on  toleration,  54,  note; 
on  book  of  common  prayer,  302. 

Bureaucracy,  founded  on  writing,  not 
speaking,  129;  new  word,  165;  its 
character,  ibid. 


Burke   on   legitimate  parties,   148;    on 

arbitraiy  power,  369. 
By-laws,  322 ;  etymology,  323,  note. 

C^SAR,  Julius,  376. 

Cfesarean  sovereignty,  375,  note. 

Csesarism.  See  Iniperatorial  Sover- 
eig7ity. 

Campbell,  Lord,  opinion  on  petitions 
of  British  merchants,  58,  note ;  on 
unanimity  of  jury,  238,  note. 

Capital,  amount  of,  carried  off  by  emi- 
grants, 94,  note;  95,  note. 

Capital  cities,  influence  of,  389.  Mag- 
nificent capital  cities  pave  a  state  of 
decline,  392. 

Carey,  Mathew,  on  pardoning  in  the 
United  States,  439. 

Carlisle,  Earl,  121,  note. 

Cassation,  court  of,  279. 

Cavaignac,  General,  his  arrest,  109. 

Censorship  of  the  press  in  England, 
92. 

Centralism  leads  to  enfeebling  man- 
worship,  394;  to  base  flattery,  394, 
note;  to  brilliant  acts,  395. 

Centralization,  loved  by  the  French, 
151  ;  Turgot  in  favor  of  it,  I95; 
passion  of  the  French  for  it,  283. 

Centralized  governments  have  no  in- 
stitutions to  break  powerful  shocks, 

349- 
Ceracchi,  conspirator,  executed  by  sena- 

tus-consultum,  317,  note. 
Chambord,  Count,  his  letter  not  allowed 

to  be  published,  3S6,  note. 
Champ-de-Mars,    the    many    different 

government  exhibitions  on  the  same, 

343- 

Chancellor,  Lord,  of  England,  being 
moderator  of  house  of  lords,  186; 
member  of  the  cabinet,  1S6,  note. 

Chardin,  on  pardoning  in  Persia,  433. 

Charter,  French,  of  Louis  XVIIL,  in 
full,  545  and  sequ ;  of  the  year  1 830, 
ibid. 

Charter,  thb  great,  of  England,  458  and 
sequ,  and  470  and  sequ. 

Chariists,  petition  in  1848,  121,  note. 

Chatham,  Lord,  on  trial  by  juiy,  233; 
on  passage  in  Magna  Charta,  con- 
cerning administration  of  jivstice, 
276  ;  on  arbitrary  power,  369. 

Chevenix,  on  national  character,  1 82, 
note. 

Cicero,  definition  of  liberty,  28. 

Cis-Caucasian  race,  22,  note. 

Cities,  in  the  Netherlands  were  sover- 


INDEX. 


6ii 


eign,  170,  note,  337  ;  not  sufficient 
as  patria  for  moderns,  170. 

City,  confounded  by  the  ancients  with 
the  state,  45  and  sequ. 

City-stales  and  national  states,  360  and 
sequ. 

Civilization,  law  of  spreading,  294. 

Civil  Law,  influence  of,  on  common  law, 
212. 

Civil  Liberty.     See  Liberty. 

Civil  List.     See  Taxation. 

Code  Napoleon  and  equality,  essence 
of  civilization,  19. 

Codification  does  not  prevent  interpreta- 
tion, 205.  Lord  Cranworth  on,  207, 
note. 

Coetlogon,  French  case  of  opening 
letters,  92. 

Coke,  on  the  justice  of  the  peace,  322, 
and  note. 

Collard,  Royer,  on  absolutism  of  the 
majority,  283. 

Colonization  Society.  125. 

Color,  effect  of  distinction  of  races  on 
American  sympathy  and  politics,  260. 

Commissions,  contradistinguished  from 
regular  courts,  106. 

Common  law,  necessary  for  the  inde- 
pendence of  the  law,  204  and  sequ. 
Constitutes  the  greater  jiortion  of 
British  constitution,  210.  Compared 
with  civil  law,  21 1;  article  Common 
Law  in  Encyclopaedia  Americana, 
written  by  Judge  Story,  213,  note; 
American  writers  who  take  French 
views  of  liberty  and  of  law  against 
it,  214. 

Communion,  right  of,  87  and  sequ. 
Liberty  of,  always  abolished  by  abso- 
lutists, 272. 

Communism,  the  basis  of  the  Utopias, 
44,  note. 

Compensation  bill,  intended  by  Ro- 
milly  for  accused  persons  not  found 
guilty,  77. 

Com]nirgators,  454. 

Conclamation,  election  by,  of  medieval 
character,  401. 

Confederation,  Articles  of,  and  Per- 
petual Union,  in  full,  503  and  sequ. 

Confirmatio  Chartarum,  470  and  sequ. 

Confirmation  of  liberties,  470  and  sequ. 

Confiscation,  incompatible  with  civil 
lil)erty,  loi. 

Conflicts  between  courts  and  adminis- 
trations, were  to  be  decided  by  a 
separate  tribunal,  according  to  French 
constitution  of  184S,  566. 


Conscience,  liberty  of,  97  and  =eq'i. 
American  constitutions  regarding  it, 
ibid.  Necessity,  at  present,  99.  Why 
its  full  acknowledgment  in  England 
so  late,  100. 

Conscription  in  France,  I19,  note. 

Constitutionality,  declared  by  supreme 
court,  162  and  sequ. 

Constitutions,  produced  in  our  age,  17, 
18;  written  and  unwritten,  enacted 
and  cumulative,  162,  note;  of  Eng- 
land, consists  chiefly  of  common 
law,  210;  what  it  consists  of,  ibid.; 
of  the  United  States,  called  atheistic, 
259,  note;  of  the  United  States, 
works  on  it,  and  on  their  govern- 
ment, 265,  note;  of  the  United 
States,  in  full,  514  and  sequ  ;  French, 
of  1793,  in  full,  531  and  sequ;  of 
the  French  republic  of  184S,  555 
and  sequ;  of  France,  of  1 85 1,  576 
and  sequ. 

Coode,  codifying  English  poor-law, 
207,  note. 

Cooper,  Dr.  Thomas,  opinion  of  Ham- 
ilton's Parliamentary  Logic,  192, 
note. 

Corruption  of  blood,  not  admitted  in  the 
United  States,  80;  in  England,  102. 

Council  of  State,  in  France,  200. 

Council  of  Trent,  adopted  the  half-hour 
rule,  133,  note. 

Counsel  of  the  prisoner,  240. 

Country,  necessary  for  moderns,  instead 
of  ancient  cities,  169,  and  note. 

Cours  i^revotales,  abolished  by  charter  of 
Louis  XVIIL     See  Natural  Courts. 

Courvoisier,  and  Philips  his  counsel, 
245,  note. 

Cranworth,  Lord,  on  codification,  207, 
note  ;  on  trial  by  jury,  236,  note. 

Crimen  exceptum,  high  treason,  82. 

Cromwell,  congratulations  on  dissolv- 
ing parliament,  418. 

Crowds,  acclaiming,  deceive,  396. 

Crown,  or  principate,  on  the  Continent, 
49. 

Crusades,  in  connection  with  the  Vox 
populi  vox  Dei,  400. 

Cumulative  constitutions.  See  Enacted 
Constitutions. 

Cumulative  voting,  177,  note. 

Curtis,  G.  J.,  History  of  the  Constitu- 
tion of  the  United  States,  265,  note. 

Cushing,  L.  S.,  Rules  of  Proceeding 
and  Debate,  etc.,  i9i.note. 

Cyclopean  walls,  353,  note.  See  Forch- 
hammer. 


6l2 


INDEX. 


Dahomey,  King  of,  his  letter  to  Queen 
Victoria,  25,  note. 

Daly,  Judge,  Historical  Sketch  of  the 
Judicial  Tribunals  of  New  York, 
239,  note. 

Debating,  not  known  in  Roman  senate, 
189,  note  ;  cannot  take  place  in  mass- 
meetings,  ibid. 

Deciduous  institutions,  319. 

Declaration  of  Independence  of  the 
United  States,  in  full,  498  and  sequ. 

Decree  of  March  22,  1852,  to  regulate 
"  the  relations  of  the  legislative  corps 
with  the  president  of  the  republic 
and  the  council  of  state,"  582. 

Defensors,  of  prisoners,  240. 

Definitions  of  Liberty,  26  and  sequ. 
Difficulty  to  defend  it,  ibid. 

Delegated  powers, — those  which  are 
not  positively  delegated  are  reserved 
for  the  people  by  the  Constitution  of 
the  United  States,  161. 

Demagogues,  338. 

Democracy,  Aristotle's  opinion  on  ex- 
treme, 156;  absolute,  or  in  the  agora, 
hostile  to  liberty,  167. 

Democratic  absolutism,  156. 

Democratic  might,  divine  right  and, 
366. 

Deputative  government  of  the  middle 
ages,  164. 

Despots,  brilliant,  their  danger,  26. 

De  Tocqueville  and  De  Beaumont,  on 
the  abuse  of  pardoning  in  the  United 
States,  438. 

Divine  right  and  democratic  might, 
366. 

Division  of  government  into  three 
branches,  150. 

Division  of  power,  contrary  to  abso- 
.  lutism,  275. 

Dixon,  C.  G.,  Sketch  of  Maiwara,  etc., 
169,  note. 

Doge  of  Venice,  his  election,  178. 

Dragonnades,  under  Louis  XIV.  See 
Army,  Soldiers,  etc. 

Dred  Scott  case,  262,  note. 

Duke's  laws,  238. 

Dumont,  concerning  absence  of  par- 
liamentary practice  in  French  Revo- 
lution, 190. 

Ebrington,  Lord,  283,  note. 

Education  alone,  no  basis  for  liberty, 
299. 

Egress  and  regress  secured  by  Magna 
Charta.  See  Locoviotion,  Right  of, 
and  the  Charter  itself,  in  Appendix. 


Election  alone  not  liberty,  32  ,  of  the 
chief  ruler,  does  not  establish  a  re- 
public, or  liberty,  150,  note;  direct 
and  indirect,  174;  in  electors  to  elect 
President  of  United  States,  175  and 
sequ ;  circuitous  elections  in  the  mid- 
dle ages,  178  ;  management  of  elec- 
tions must  not  be  in  the  hands  of  the 
executive,  179;  of  chief  does  not 
establish  liberty,  286 ;  not  allowing 
to  choose,  386  ;  paper  on  it,  Appen- 
dix, 413  and  sequ. 

Elections,  ex  post  facto.  See  Ex  post 
facto  Elections.  Conditions  to  make 
them  valid,  414.  Question  must  have 
been  freely  discussed,  ibid.  Absence 
of  the  army,  4-14  and  sequ ;  must  be 
carried  on  by  election  institutions, 
415;  returns  must  be  protected 
against  falsification,  ibid.  ;  the  per- 
son on  whom  the  voting  takes  place 
must  not  have  the  supreme  power,  or 
it  must  be  possible  to  make  him  obey 
the  issue,  ibid. ;  there  must  be  two 
things  to  vote  upon,  ibid. ;  the  power 
claiming  the  election  must  not  have 
committed  a  political  crime,  ibid.; 
must  be  on  things  subject  to  public 
opinion,  416.  Election  of  patron 
saint,  416,  note.  Congratulations 
crowding  on  Cromwell  after  having 
dissolved  parliament,  418;  they  did 
not  express  English  public  opinion, 
ibid.  Election  statistics,  ibid.  Quali- 
fied voters  abstain  in  proportion  to 
the  general  privilege  of  voting,  419; 
twenty-five  per  centum  a  small  num- 
ber of  abstainers,  ibid.  If  qualified 
voters  more  than  two""  or  three  thou- 
sand, one-half  voting  shows  com- 
mon interest,  420 ;  voting  on  men 
draws  more  votes  than  voting  on 
measures,  ibid.  French  have  never 
voted  no  on  proposed  constitutions, 
consuls  or  emperors,  ibid.  Election 
of  Napoleon  I.,  421.  How  many 
Athenians  usually  voted,  ibid.  Os- 
tracism, 421,  422.  Instances  of 
number  of  abstainers,  423  and  sequ 
Official  statement  of  election  after 
French  coup  d'etat,  427  ;  cannot  be 
correct,  ibid. 

Electors  of  President  of  the  United 
States,  175. 

Eleutheria,  29. 

Emigration,  93  and  sequ.  Amount  of 
capital  carried  off  by  emigrants,  94, 

Enacted  or  written  constitutions,  265. 


INDEX. 


613 


England,  her  service  in  the  cause  of 
freedom,  19  and  sequ.  Early  sepa- 
ration of  justice  from  administra- 
tion, 20,  note.  Her  liberty  the 
foundation  of  ours,  20,  21.  Many 
fortunate  circumstances  in  her  his- 
tory, 48  and  note  ;  becomes  the  model 
of  liberty  for  the  Continent,  49. 

English  a  peculiarly  jural  nation,  451. 

Enlightened  absolutism  not  the  best 
government,  26. 

Enthusiasm  no  basis  of  lilierty,  299. 

Epistolary  communism,  88  and  sequ. 

Equality,  and  Code  Napoleon,  the  es- 
sence of  political  civilization,  19. 
Confounded  with  liberty,  29.  More 
equality  in  Asia  than  in  the  United 
States,  30 ;  the  French  seek  for  lib- 
erty in  it,  281,  282  and  sequ;  diffi- 
cult to  see  what  the  French  mean  by 
it,  285. 

Erskine,  Lord,  opinion  of,  on  trial  by 
jury,  233,  note. 

Ethics  of  the  Advocate,  240  and  sequ. 

Everett,  Edward,  opinion  of,  on  impor- 
tance of  parliamentary  law  and  pro- 
cedure, 189,  note  ;  on  the  French  in 
Canada,  and  inability  of  the  P'rench 
to  establish  governments  in  foreign 
parts,  330. 

Every  man's  house  is  his  castle,  60  and 
sequ.  How  it  developed  itself,  61. 
Possessing  still  full  vitality,  ibid. 

Executive  must  have  a  warrant  for 
what  it  does,  161. 

Ex  post  facto  elections.  See  Impera- 
toj'ial  Sovereignty,  and  413. 

Ex  post  facto  laws,  106. 

F.A.BRIK-GERICHTE.     See  Manufactory 

Courts,  231,  note. 
Fashion,   though   unanimous,  not  vox 

populi  vox  Dei,  402. 
Federalism  characterizes  American  lib- 
erty, 258.     French  hatred  of  it,  288, 

note. 
Ferrers,  George,  member  of  parliament, 

released  from  arrest  in  1543,  182. 
Fete  of  the  Eagles,  274. 
Feudal  system,  47. 
Feuerbach,    Manual  of    the    Common 

German  Penal  Law,  239,  note. 
Fijians    take    more    powder   to    kill  a 

large  man,  455. 
Furchhammer  on  the  Cyclopean  walls, 

353,  note. 
Foster,   Discourse  of   Homicide,   no, 

note. 


Fox,  Charles,  Bill  on  Libel,  235,  note. 
Framers  of  American  Constitution,  their 

character,  261. 
Francis,  Chronicles  and  Characters  of 

the  Stock  Exchange,  146. 
Franklin,  Dr.,  in   favor  of   one  house 

of  legislature,  195 
Frederic  H.,  concerning  petitions,  123; 

why  should    many   submit    to   one  ? 

370- 

Free  press,  first  in  Netherlands,  87. 
Constitution  of  the  United  States  dis- 
tinctly establishes  freedom  of  the 
press,  88.  Prohibited  by  English 
republican  government,  92. 

Freedom,  etymology  and  distinction 
from  liberty,  37  and  38,  note. 

Freedom  of  action  desired  by  all  men, 
25  ;   even  by  despots,  ibid. 

Freemen,  subjects,  and  slaves,  26,  27. 

French  Constitution  of  1793,  531 ;  of 
1S51,  576. 

French  Charters  of  Louis  XVHL  and 
of  the  year  1830,  545  and  sequ. 

French  idea  of  liberty  and  the  height 
of  civilization,  157,  note. 

French  interference,  251. 

French,  mistake  source  of  power  for 
foundation  of  freedom,  197  and  sequ. 

French  Republic  of  1848,  Constitution 

of.  555- 

French  republicanism  strives  chiefly  for 
equality,  19. 

French  senate,  report  of,  on  petitions 
to  change  the  republic  into  an  em- 
pire, 588. 

Fronto,  Letter  to  Marcus  Aurelius,  374, 
note. 

Gallican  liberty,  279  and  sequ. 
Court  of  cassation,  ibid.  French 
senate,  281.  Sought  in  equality, 
ibid.  French  seek  for  self-govern- 
ment in  absolute  rule  of  the  majority, 
ibid.     Unicameral  system,  288. 

Gaza,  210. 

Gendarmerie,  no. 

General  opinion,  mere,  worth  little  as 
political  truth,  417. 

General  warrants,  62  and  sequ.  Lord 
Mansfield's  opinion,  ibid.  Green- 
leaf,  63. 

Girardin,  Emil,  confounded  election 
and  liberty,  32;  French  writer  in 
favor  of  an  undivided  public  power, 
150;  calls  universal  suffrage  the  re- 
public, 355. 

Girouettes,  Dictionnaire  des,  409,  note. 


6i4 


INDEX. 


Gottfried,  poisoner,  240,  note. 

Grayson,  moves  free  river  navigation 
in  congress,  268. 

Great  cities.     See   Vaughn. 

Grebo  tribe,  "  patriarchal  democracy," 
287,  note. 

Greeks,  their  definition  of  liberty,  29. 

GreenJeaf  on  warrants,  63.  Collection 
of  cases  overruled,  209,  note. 

Grey,  Sir  George,  expatriation  law, 
437.  "ote. 

Guards,  declared  unconstitutional,  114, 
note. 

Guizot,  on  absolute  monarchy,  155  ; 
History  of  Representative  Govern- 
ments, 318,  note;  Histoiy  of  Civili- 
zation, 287. 


Habeas  Corpus,  64;  act,  Charles  H., 
ibid.;  Constitution  of  the  United  States 
prohibits  its  suspension,  65  ;  allows 
it  under  certain  circumstances,  ibid.  ; 
habeas  corpus  act  in  full,  4S3  and 
sequ.  • 

Hale,  Chief  Justice,  on  misstating  au- 
thorities, 244. 

Hallam,  on  unanimity  of  juries,  237. 

Haller,  Restoration    of    Political    Sci 
ences,  349,  note.  ■ 

Hamilton,  W.  Gerard,  Parliamentary 
Logic,  192,  note. 

Hamilton,  Sir  William,  on  origin  of 
vox  populi  vox  Dei,  400,  note. 

Hammersly,  Thomas,  banker  through 
whom  George  IV.  and  his  brothers 
borrowed  Dutch  money,  105,  note. 

Hampden,  144.  Memorials  of  John 
Hampden,  by  Lord  Nugent,  ibid. 

Harris,  Oceana,  considered  the  mere 
vetoing  power  in  the  people  the 
chief  protection  of  liberty,  359. 

Helots  and  Spartans,  27. 

Henry  VHL,  even  he  paid  outward 
respect  to  law,  20,  note. 

Hesiod,  quoted  l;y  Sir  Wm.  Hamilton 
as  to  origin  of  vox  populi  vox  Dei, 
400,  note. 

High  treason,  79  and  sequ.  Well- 
guarded  trial  for  high  treason  neces- 
sary for  liberty,  ibid,  and  sequ.  Com- 
mon jirotection  of  criminals  with- 
drawn from  it,  80 ;  Constitution  of 
the  United  States  on  it,  ibid. ;  course 
of  its  development,  81.  Law  of  high 
treason  a  gauge  of  liberty,  S3  ;  neces- 
sary safeguards  of  a  fair  trial  for  high 
treason,  83  and  sequ.      The  senate 


does  not  ti-y  for  it,  85.      Neapolitan 

trials  for  treason,  ibid. 
Hildreth,  Theory  of  Politics,  etc.,  214, 

note. 
Holt,  Lord,  doctrine  of  bailments,  212, 
Hortensius,  Historical  View  of  the  Of- 
fice and  Duties  of  an  Advocate,  241, 

note. 
House,  one,  of  legislature,  194;  tried 

in  the  United  States,  ibid. 
Jlouses,  two,  of  legislature,  194. 
Howard   obtains  support  of   prisoners 

by  government,  in  1774,  219. 
Hue,  missionary,  123. 
Hungary,  disjunctive    constitution    of, 

338. 

Impeachment,  American,  85  ;  is  a  po- 
litical institution,  not  a  penal,  ibid. 
See  High  Treason. 

Imperatorial  sovereignty,  374  and  sequ. 
Roman  emperors  claimed  their  power 
by  transfer  of  popular  sovereignty, 
ibid.  Return  of  the  French  to  the 
idea,  376.  Early  Asiatics  have  the 
same  idea,  378.  Peuple-roi,  381. 
Emperor,  centre  of  democracy,  384. 
Election  of  emperors  by  universal 
suffrage  futile,  385.  The  Csesar  al- 
ways exists  before  imperatorial  gov- 
ernment, 386.  Recommends  itself 
by  substituting  democratic  equality 
for  oligarchy,  387. 

Impressment  of  seamen,  66. 

Indemnity,  acts  of,  in  England,  112. 
Not  known  in  the  United  States,  112, 
note. 

Independence,  Declaration  of,  of  the 
United  States,  in  full,  498  and  sequ. 

Independence  of  the  advocate.  See 
Advocate. 

Independence  of  the  judiciary,  what  it 
consists  in,  203  and  sequ.  See  In- 
dependence of  the  Law. 

Independence  of  the  law,  204.  What 
it  consists  in,  205.  Common  law 
necessary  for  it,  205  and  sequ. 

Individual  character  and  its  elements, 
48. 

Individual  property,  its  fullest  protec- 
tion an  element  of  liberty,  loi. 

Individual  soveieignty,  2S6 ;  declarea 
by  Lamartine,  299. 

Individualism,  loi,  note. 

Initiative,  in  legislation,  183. 

Inorganic  power  of  the  people  not 
liberty,  367. 

Inquisitorial  trial,  21S  and  sequ;  paper 


INDEX. 


615 


on  it,  451.  Influence  of  the  inquir- 
ing judge,  ibid,  and  sequ ;  prisoner 
urged  to  confess,  452 ;  no  cross-ex- 
amination, ibid. ;  no  regular  indict- 
ment, ibid. ;  cliaracter  of  court  and 
police  mingle,  ibid. ;  cautious  de- 
fence, ibid. ;  admits  of  half  proofs, 
453;  illogical  characterof  half  proofs, 
454.  Compurgators  in  Ripuarian 
laws,  ibid. ;  in  Koran,  ibid.  Legal 
truths,  456.  Torture,  existed  very 
late,  457,  note. 

Institute  and  institution,  305,  note. 

Institution,  297  and  sequ.  Definition 
of,  300  and  sequ.  Grown  and  en- 
acted institutions,  303  ;  definition  by 
Dr.  Arnold,  304  ;  insures  perpetuity, 
306 ;  must  be  independent,  ibid. 
Greeks  had  no  word  for  it,  308.  Ro- 
mans reared  many  institutions,  ibid. 
Old  usages  called  institutions,  310. 
Necessaiy  attributes  of  an  institution, 
ibid. ;  the  opposite  to  subjectiveness, 
311;  dangers,  ibid. ;  tendency,  312. 
Institutional  nations,  313  ;  govern- 
ments, ibid.  Gives  strength  to  error, 
314;  effete  and  hollow  ones,  317; 
deciduous  institutions,  319.  Institu- 
tional self-government,  ibid.;  Angli- 
can view  of  it,  320;  its  requirements, 
321  ;  its  uses  and  efficiency  with  ref- 
erence to  liberty,  324.  Obedience 
with  reference  to  institution,  326;  its 
tenacity,  329  and  sequ ;  its  formative 
power,  330 ;  its  assimilative  and 
transmissible  character,  331  and  sequ. 
Why  did  the  Netherlands  not  plant 
colonies  which  have  become  inde- 
pendencies ?  332,  note.  Its  assimila- 
tive character  forcibly  shown  in  the 
United  States,  332.  Stability,  333. 
Its  dangers,  337.  On  conflicts,  340. 
Institutions  bad  from  the  beginning, 
342.  Institutions  protect  against  court 
profligacy,  350;  prevent  national  en- 
ergy from  being  directed  exclusively 
to  external  increase,  351.  Insecurity 
of  uninstitutional  governments,  363 
and  sequ.  Institutions  survived  Eng- 
land's revolutionary  absolutism,  363. 
Democratic  inorganic  masses  hostile 
to,  and  in  favor  of  monarchy,  368. 

Institutional  liberty,  300  and  sequ. 

Institutors,  the  greatest  rulers  are,  316. 

Institutum,  does  not  exactly  correspond 
to  our  word  institution,  307,  note. 

Interference,  French,  by  government, 
251. 


Interpretation,  unavoidable,  205.  Papal 
power  against  it,  206,  note.  Civil  law 
against  it,  206.  Locke  against  it, 
207.     Bavarian  code,  208. 

James  II.  subverting  constitution  ap- 
parently in  favor  of  liberty,  387. 

Jefferson,  Manual  of  Parliamentary  Prac- 
tice, 192,  note. 

Jeffreys,  Lord,  even  he  for  allowing 
counsel  to  prisoners,  240. 

Johnson,  Dr.  Samuel,  Considerations  on 
the  Com-Laws,  192,  note. 

Judge-made  law,  210. 

Judiciary,  independence  of  the.  See 
Independence  of  the  yudiciary. 

Jugements  administratifs,  in  France,  217. 

Julius  Caesar,  376. 

Junkerthum,  appellation  of  a  German 
party,  118. 

Justice  of  the  peace,  English,  322; 
French,  280. 

Keeper  of  the  Seals.  See  Chancellor, 
lord,  of  England. 

King,  Rufus,  in  connection  with  Ameri 
can  free  river  navigation,  267. 

King's  Bench,  its  power,  359. 

King's  Notes  on  the  Voyage  of  the  Mor 
rison,  ill,  note. 

Kingless  polity  not  necessarily  a  re- 
public, 355. 

Kingly  commonwealth,  name  given  by 
Dr.  Arnold  to  English  polity,  354. 

L.\M.\RTiNE,  in  favor  of  one  house  of 
legislature,  196;  speaks  of  division 
of  sovereignty  into  two  parts,  196, 
note;  changed  his  opinion  in  1850, 
197,  note;  his  circular  in  1848,  299; 
on  patience  in  politics,  352. 

Latinism  and  Teutonism,  293. 

Law,  peculiar  meaning  of  the  term  in 
England,  20,  and  note  ;  above  crown, 
20,  203 ;  supremacy  of,  106  and 
sequ,  273  ;  independence  of  the,  204 
and  sequ. 

Layard,  Nineveh,  339,  note. 

Legar^,  Hugh,  on  Civil  Law,  212,  note. 

Legislative  corps,  French,  decree  direct- 
ing its  intercourse  with  the  execu- 
tive, etc.,  583. 

Lemoisne,  Wellington  from  a  French 
point  of  view,  325,  note. 

Lesbian  Canon  used  by  Aristotle  to 
explain  what  psephisma  ought  to  be, 
353,  note. 

Letters,   sacredness    of,    not   acknowl- 


6i6 


INDEX. 


edged  in  France,  89  and  sequ.  Case 
of  Mr.  Coellogon,  92,  note.  Opened 
by  French  police  and  judgment  given 
by  French  courts  on  the  act,  1 6 1,  note. 

Lettre  de  cachet,  65. 

Liberians  traditionally  institutional,  330. 

Libertas,  meaning  abolition  of  royalty, 
28  ;  of  the  Romans,  42. 

Liberties,  confirmation  of,  470  and  sequ. 

Liberty,  may  exist  without  republican- 
ism, 256  ;  civil  liberty,  proved  by  con- 
traries, 270  and  sequ ;  admired  by 
many  in  the  abstract,  disrelished  in 
reality,  285 ;  election  of  the  chief 
does  not  establish  it,  286  ;  can  it  be 
enjoyed  by  the  Anglican  race  alone? 
291 ;  how  people  are  prepared  for  it, 
292  ;  institutional,  300  and  sequ  ;  sup- 
ported and  promoted  by  institutions, 
324;  saying  of  Napoleon  IIL,  that 
liberty  never  aided  in  founding  a 
durable  edifice,  335;  cannot  develop 
itself  out  of  despotism,  ibid.  Liberty 
is  not  a  mere  negation  of  power,  359; 
wealth  made  compatible  with  liberty, 
361  ;  inorganic  power  of  the  people 
not  liberty,  367. 

Lieber,  Popular  Essay  on  Subjects  of 
Penal  Law,  etc.,  72;  letter  to  W.  C. 
Preston  on  international  copyright, 
92,  note;  Essays  on  Labor  and  Prop- 
erty, loi,  note,  383;  Principles  of 
Interpretation  and  Construction  in 
Law  and  Politics,  205,  note ;  Ency- 
clopoedia  Americana,  213,  570;  Char- 
acter of  the  Gentleman,  245  ;  on 
Independence  of  Justice  and  Free- 
dom of  Law,  (in  German,)  204,  note ; 
Legal  Hermeneutics,  etc.,  206. 

Liverpool,  Lord,  considers  cabinet  min- 
isters responsible  to  parliament  and 
the  public,  160,  note. 

Locke,  for  the  division  of  power,  150; 
against  interpretation  of  law  by  courts, 
207  and  sequ ;  against  unanimity  of 
juries,  238. 

Locomotion,  right  of,  87  and  sequ,  93 
and  sequ. 

London,  police  of,  297 ;  though  larger 
than  Paris,  does  not  lead  England,  392. 

Longevity  of  modern  states,  362. 

Lynch  law,  82. 

Macaulay,  Lord,  opinion  on  want  of 
written  guarantees  when  Charles  II. 
was  restored,  329. 

Machiavelli,  on  new  governments,  357) 
note. 


Madiai  family,  98. 

Magna  Charta  of  King  John,  in  full, 
458  and  sequ;  of  Heniy  IIL,  etc., 
in  full,  470  and  sequ. 

Majority,  rule  of,  mistaken  for  self-gov- 
ernment, 282. 

Malta,  Knights  of,  election  of  the  mas- 
ter, 178. 

Mandarinism,  165,  note. 

Mansfield,  Lord,  on  warrants,  62  ;  letter 
to  a  Scottish  judge,  on  alterations  to 
be  made  by  courts,  215,  note  ;  on  the 
case  of  Rev.  Dr.  Dodd,  437,  note ; 
calls  Socrates  the  greatest  of  lawyers, 
242. 

Marcus  Aurelius,  letter  from  Fronto  to, 
374,  note. 

Market  democracy,  irreconcilable  with 
liberty,  167. 

Mars,  Mademoiselle,  her  saying,  405. 

Marshall,  Chief  Justice,  on  treason,  81. 

Martial  law,  executive  must  not  have 
the  sole  power  of  declaring  it,  108. 
In  England,  by  act  of  parliament, 
ibid.  Under  what  circumstances  the 
Constitution  of  the  United  States 
permits  suspension  of  habeas  cor- 
pus, 65. 

Masaniello,  sepulchral  inscription  in 
honor  of,  377,  note. 

Merchants,  London,  their  spirit  towards 
Napoleon  IIL,  58,  note. 

Michel,  advocate,  381. 

Michigan,  abolishes,  in  1859,  grand 
jury,  256. 

Migration  of  nations,  modern,  peaceful, 
21. 

Milton  against  censorship,  92. 

Ministers,  responsible.  See  Resp07isible 
ministers,  159  and  sequ;  ministers  of 
the  crown  had  a  seat  in  both  houses, 
even  if  not  members,  under  tiie  two 
charters,  183. 

Minority,  protected,  important  to  lib- 
erty, 31 ;  its  protection  a  necessary 
element  of  liberty,  148 ;  to  be  repre- 
sented by  mode  of  voting,  176;  to 
be  represented  by  a  mode  of  election, 
177,  and  note. 

Miot,  Count,  memoirs,  account  of  Na- 
poleon's attempt  to  abolish  jury,  253, 
note. 

Miot,  Count,  with  reference  to  senatus- 
consultum,  317,  note. 

Mirmont,  de  la  Viile  de,  observations 
on  pardoning  for  good  conduct,  448, 
note. 

Mittelberger,    Gottlieb,    seven    weeks 


INDEX. 


617 


chiefly  on  the  Rhine,  from  Swabia 
to  Rotterdam,  267,  note. 

Mittermaier,  opinion  of,  on  importance 
of  penal  trial,  69 ;  on  independence 
of  advocates,  240,  note. 

Mobs,  407  and  sequ. 

Mohl,  Robert  von,  History  and  Litera- 
ture of  the  Political  Sciences,  350, 
note. 

Montaign,  executed  by  commissioners, 
106,  note. 

Montalembert,  Count,  his  trial  in  1858, 
84 ;  prosecution  against  him,  why, 
197. 

Montesquieu,  his  definition  of  liberty, 
2,T) ;  English  liberty  his  model,  49  ;  on 
penal  trial,  69  ;  on  division  of  power, 
150;   on  despotic  power,  152. 

Moral  reduplication,  case  of,  311. 

Mormonism  no  republic,  288. 

Mormons,  99  and  sequ. 

Morny,  A.  de,  letter  of,  to  the  pre- 
fects, concerning  the  character  of 
French  imperial  government,  605. 

Morpeth,  Lord,  Earl  Carlisle,  121,  note. 

Miiffling,  Baron,  Campaign  of  1813 
and  1814,  edited  by  Col.  P.  Yorke, 
328. 

Mutiny  bill,  in  England,  keeps  army 
under  control  of  parliament,  1 14. 

Mutual  toleration  necessarily  connected 
with  liberty,  54. 

Napoleon  L,  on  the  French  love  of 
equality,  2S3  ;  his  device,  "  every- 
thing for  the  people,  nothing  by  the 
people,"  250;  attempts  to  abolish 
jury,  253,  note. 

Napoleon  IIL,  his  testimony  in  favor 
of  English  personal  liberty,  65  ;  when 
in  exile,  wrote  against  passports,  96, 
note;  prohibits  the  sale  of  printing 
presses  and  types,  272;  declares  the 
history  of  nations  the  history  of  their 
armies,  274;  congratulates  France 
that  it  enjoys  indigenous  institutions, 
293 ;  saying  regarding  liberty  being 
incapable  of  founding  durable  edi- 
fices, 335  ;  "  in  crowning  me,  France 
crowns  herself,"  355,  note;  speech 
on  opening  the  Louvre,  on  the  repre- 
sentative character  of  great  public 
buildings,  390,  note;  declared  the 
savior  of  civilization,  396. 

National  and  city  states,  360  and  sequ. 

National  guards,  290. 

National  independence  an  element  of 
liberty,  56  and  ^equ. 


National    representation   necessary  for 

liberty,  168. 
National  states,  168  and  note. 
Nationalization,  47. 
Natural  courts,  107. 
Navy  not  dangerous  to  liberty,  II4. 
Netherlands  ruined  by  disjunction,  169, 

note. 
Netherlands,  why  did   they   not   plant 

independent  empires  ?  332,  note. 
Niebuhr,    B.     G.,    Administration    of 

Great  Britain,  by  Baron  von  Vincke, 

edited  by,  321,  note. 
Nobility,  its  absence  in  America,  when 

the  revolution  broke  out,  prevented 

civil  war,  257;  none  in  England,  in 

point  of  law,  348,  note. 
Nomos  and  psephisma,  353,  note. 
Nugent,  Lord,  opinion  of,  on  the  right 

of  granting  supplies,  144. 

Obedience,  in  connection  with  institu- 
tion, 327. 

Oceana,  Harris's,  338,  note. 

Occidental,  contradistinguished  from 
Oriental,  22. 

Odo,  yielding  his  consent  to  be  Arch- 
bishop of  Canterbury,  in  connection 
with  vox  populi  vox  Dei,  400,  note. 

Omnipotence  of  parliament,  368,  note. 

One-hour  rule,  133,  note.  Council  of 
Trent  adopted  half-hour  rule,  ibid. 

Opposition,  necessary  element  of  lib- 
erty, 148  and  sequ;  its  development 
in  England,  149. 

Oral  discussions,  128;  necessary  to 
liberty,  129. 

Ordinance  of  13th  July,  1787,  declaring 
Americag  rivers  free,  268. 

Oregon,  meeting  of  settlers,  when  con- 
gress had  failed  to  provide  for  them, 
194. 

Ostracism,  how  many  votes  polled,  421. 

Otis,  James,  first  proposes  to  hold  pub- 
lic deliberations  of  legislature,  131, 
note. 

Ouvrier,  or  workman,  in  1848,  382. 

P.A.LEY,  definition  of  liberty,  34  ;  idea 
of  penal  law,  72,  note. 

Palmerston,  Lord,  declaration  in  1853 
that  England  will  protect  political 
exiles,  56;  his  complacency  to  Na- 
poleon punished  by  the  commons  in 
1859,  57;  on  pardoning,  449. 

Papal  interference  not  sufiered  in  Eng- 
land at  an  early  period,  59. 

Pardon,  a  real  veto  power,  202. 


6i8 


IXDEX. 


Paidoning,  abuse  of,  paper  on  it,  431 
and  sequ.  Resembles  the  ancient 
veto,  ibid.  Origin  of  pardoning 
power,  432.  Asiatic  despots  divest 
themselves  of  it,  ibid.  Chardin 
speaks  of  it  in  Persia,  433.  Authors 
against  pardoning,  especially  Bec- 
caria,  434.  It  cannot  be  dispensed 
with,  ibid.  Supremacy  of  the  law 
invaded  by  unjust  and  licentious  par- 
doning, 435.  It  unsettles  reliance  on 
law,  436;  destroys  certainty  of  pun- 
ishment, ibid.;  Shakspeare  against 
it,  ibid. ;  interferes  with  reform  of 
criminals,  ibid. ;  imports  criminals 
from  abroad,  ibid. ;  induces  people 
to  petition  for  it  who  know  nothing 
about  its  character,  ibid. ;  sends  crimi- 
nals abroad,  437  ;  places  arbitrary 
power  in  the  hands  of  an  individual, 
ibid.  Lord  Mansfield,  on  Rev.  Dr. 
Dodd,  437,  note.  De  Beaumont  and 
De  Tocqueville,  on  pardonmg  in  the 
United  States,  438.  Mathew  Carey 
on  it,  439.  Taking  money  for  par- 
doning, ibid.,  and  note.  Pardoning 
in  Massachusetts,  440.  Averages  in 
penal  matters,  442 ;  their  insuffi- 
ciency, 443,  note.  How  to  abolish 
the  abuse  of  pardoning,  444.  Re- 
striction in  the  French  constitution 
of  1848,  442,  note.  Attention  not  yet 
sufficiently  directed  to  it,  445,  note. 
Legislature  no  proper  body  for  par- 
doning, 446.  Requisites  of  a  proper 
board  of  pardoning,  447.  Restitu- 
tion different  from  pardon,  448.  Lord 
Palmerston  on  pardoning,  449. 

Paris,  its  influence  on  account  of  cen- 
tralization, 389;  dictates  in  every- 
thing, 393-  ^ 

Parliament,  British,  distribution  of  seats 
in,  172,  note. 

Parliamentarism,  term  coined  by  the 
French,  2S9. 

Parliamentary  law,  185  and  sequ ;  is 
part  of  common  law,  187.  Ancients 
had  it  not,  189. 

Parliamentary  liberty  derided,  18,  317. 

Parliamentary  procedure,  188;  Judge 
Story  on  its  importance,  193. 

Parties  and  party  government,  148. 
Their  dangers,  149. 

Passports,  dislike  of  them  by  cur  race, 

9.6- 
Patience  in  politics,  352. 

Patri<<tism  not  national  vanity,  294. 

Patron  saint,  e'ection  of,  416,  i.ote. 


Payne,  Rev.  Mr.,  on  the  Grebe  tribe, 
288,  note. 

Peerage  is  not  nobility,  348,  note. 

Penal  law  of  England  foimerly  very 
cruel,  but  not  the  trial,  219. 

Penal  laws,  according  to  Montesquieu, 
determine  liberty,  34. 

Penal  trial,  well-secured,  necessary  for 
liberty,  68.  Montesquieu  on  it,  69. 
Ancient,  70 ;  French,  71.  Not  a  fa- 
vorite topic  of  lawyers,  ibid. ;  requi- 
sites of  a  sound  penal  trial,  71  and 
sequ.  Dangers  of  putting  questions 
to  prisoners,  74.  Questioning  was 
formerly  allowed  in  England,  ibid. ; 
reasons  against  it,  75.  No  man  to  be 
tried  twice  for  the  same  offence,  76. 
As  important  as  penal  law  itself,  219. 

People,  the  different  meanings  of  the 
term  in  different  counf'es,  346.  In 
England  and  America,  u".  honored 
word,  347.  Confusion  of  the  people 
and  some  people,  347,  note.  The 
people  "never  violate  the  constitu- 
tion," 381.  What  does  the  term 
mean  in  "  vox  populi  vox  Dei"  ?  398, 
405. 

Personal  liberty,  its  guarantees,  59. 

Persons  and  papers,  power  of  sending 
for,  188. 

Petition,  right  of,  121  and  sequ.  Con- 
sidered lightly  by  an  American  states- 
man, 121.  In  Russia,  122  ;  in  China, 
123.  In  Prussia,  under  Frederic  II., 
ibid.  No  demonstrations  of  physical 
force  ought  to  accompany  it,  123. 

Petition  of  Right,  in  full,  478  and  sequ. 

Petre,  Hon.  Mrs.,  and  Silby  estate 
affair,  95,  note. 

Peuple  tout-puissant,  299,  368. 

Philips,  in  the  Courvoisier  case,  245, 
note. 

Pickering,  Timothy,  letter  to  Rufus 
King,  urging  free  river  navigation, 
268. 

Pigott,  Sir  Arthur,  repudiating  for  the 
Prince  of  Wales,  105,  note. 

Pitt,  his  last  words  on  England's  self- 
reliance,  anecdote  related  by  Wel- 
lington, 251. 

Pius  IX.,  Pope,  uses  "  vox  populi  vox 
Dei,"  406. 

Plato's  Republic,  44. 

Plumper,  in  elections,  177. 

Plutarch,  influence  of,  in  France,  372. 

Police  governments,  91. 

Polignac,  Duke  of,  charge  against  him^ 
179.  385- 


INDEX. 


619 


Political  ofTence,  79. 

Pope  Pius  IV.,  against  interpretation, 
206,  note. 

Popular  absolutism,  373. 

Popular  unrestrained  power,  opposite 
to  self-government,  3S8. 

Power,  its  "  impotency,"  Napoleon's 
saying,  253 ;  too  much  growth  of, 
can  only  be  prevented  by  institu- 
tions, 357;  necessary  for  government, 
358  ;  mere  negation  of,  no  security 
for  liberty,  366;  its  origin  has  no 
connection  with  liberty,  371  ;  neces- 
sity of  giving  some  fair  account  of  its 
basis,  379. 

Practice,  parliamentaiy,  1S9. 

Practice,  so-called,  in  German  courts, 
215. 

Precedent,  element  of  all  development, 
20S.  Necessary  to  liberty,  209.  Lib- 
erty stands  in  need  of,  276. 

Preferential  voting,  177,  note. 

Preston,  Wm.  C,  letter  to,  on  inter- 
national copyright,  92,  note. 

Price,  Dr.,  his  definition  of  liberty,  28; 
Turgot's  letter  to  him,  195. 

Principate,  or  crown,  49. 

Private  property  acknowledged  by  the 
P'rench  constitution,  103. 

Procedure,  parliamentary,  188;  absence 
of  it  in  the  French  revolution,  190. 
American  habit  of,  191.  French 
work  on  it,  by  Vallette  and  St. -Mar- 
tin, 191,  note. 

Proclamation  of  Napoleon,  president 
of  the  republic,  preceding  the  con- 
stitution which  became  the  imperial 
one,  571. 

Property,transmissionof,  by  inheritance, 
loi.  Unimpeded  exchange  and  ac- 
cumulation, elements  of  liberty,  102. 
Protected  by  the  Constitution  of  the 
United  States,  103.  Basis  of  repre- 
sentation, 171  and  sequ.  What  is  really 
meant  Ijy  it,  173.  Consisted  chiefly  in 
land,  in  the  middle  ages,  174. 

Propter  vitam  vivendi  perdere  causas, 

253- 
Pioudhon,  no  one  less  democratic  than 

the  people,  369. 
Proverbs,  voice  of  the  people,  but  not 
*      of  God,  406. 
Proxy  voting,  177,  note. 
Psephisma  and  Nomos,  353,  note. 
Psychical  reduplication,  192. 
Public,  derivation  of  the  word,  130. 
Public  funds  must  be  under  control  of 

the  legislature,  143. 


Public  opinion  differs  from  general 
opinion,  or  passion,  387. 

Public  trials,  criminal,  in  Naples,  21. 

Publicity,  in  justice  and  legislation, 
saved  by  England,  21,  127  and  sequ. 
\Vhat  it  consists  in,  128.  Of  courts 
of  justice,  not  guaranteed  by  positive 
law  in  the  United  States  or  England, 
130.  First  distinctly  authorized  for 
the  legislature  in  Massachusetts,  131. 
Public  speaking  necessary,  and  the 
ornament  of  liberty,  133.  To  read 
speeches  in  legislatures  an  evil,  134. 
Hostility  of  absolute  governments  to 
publicity,  ibid.  Interesting  historical 
account  of  the  introduction  of  pub- 
licity in  the  Senate  of  the  United 
States,byJamesC.  Welling,  135,  note. 

Quartering  of  soldiers,  113  and  sequ. 
Queen  of  England,  called  an  institution, 
309- 

Raikes,  Charles,  Notes  on  the  North- 
western Province,  128,  note. 

Raj^p,  General,  his  opinion  of  Napo- 
leon, 155,  note. 

Raumer,  von.  Diplomatic  Despatches 
of  the  Last  Centuiy,  352,  note. 

Reduplication,  psychical,   192;  law  of, 

3"- 

Report  of  the  French  senate  on  the 
petitions  to  change  the  republic  into 
an  empire,  588. 

Representation,  basis  of,  17 1. 

Representative  government,  164  and 
sequ;  differs  from  dejiutative  govern- 
ment, ibid.  Derided,  18;  haled  by 
Rousseau,  ibid. 

Representatives  must  be  free,  1 80;  fre- 
quent election  of  them,  ibid.;  must 
be  protected,  ibid.  Free  from  arrest, 
182.  Possessing  the  initiative,  183. 
Officers  of  the  United  States  cannot  be 
members  of  congress,  183.  Are  they 
national,  or  merely  for  their  constit- 
uents ?  200. 

Republic  and  resjjublica,  42. 

Republic,  in  1848,  was  telegraphed 
from  Paris  to  the  departments  and 
accepted  by  return,  393. 

Rejuiblique  democratique  et  sociale, 
284. 

Repudiation,  104.  Sir  A.  Alison  on 
Repudiation,  104  and  note.  Repu- 
diation has  not  been  republican,  but 
rather  monarchical,  105,  note. 

Responsible  ministers,  159  and  sequ. 


620 


INDEX. 


Respublica  and  republic,  42. 

Right,  Petition  of,  in  full,  478  and  sequ. 

Rights,  Bill  of,  in  full,  492  and  sequ. 

Rights  of  man,  531  and  sequ. 

Ripuarian  laws,  454. 

Rivers,  international  question  of  free 
navigation  of,  266,  267,  and  note; 
freedom  of  their  navigation  peculiar  to 
the  United  States,  266.  Difficulty  in 
Germany,  ibid. ;  the  Scheldt,  267. 
Magna  Charta  regarding  rivers,  ibid. 
Ordinance  of  1787  declaring  rivers 
forever  free,  268. 

Robespierre's  "  great  speech,"  275. 

Roman  lawyers,  their  definition  of  lib- 
erty, 27.  Their  dictum  of  the  em- 
peror's pleasure,  27  and  note. 

Romans  did  not  incline  to  abstraction, 
307  and  sequ. 

Romiliy,  Sir  Samuel,  his  opinion  on 
putting  questions  to  the  prisoner,  74 ; 
on  absence  of  parliamentary  practice 
in  French  revolution,  190;  on  ethics 
of  lawyers,  246. 

Rousseau  hates  representative  govern- 
ment, 18;  his  views  lead  to  central- 
ized government,  ibid.  ;  against  divi- 
sion of  power,  151,371  ;  his  aversion 
to  representative  government,  283, 
note,  2S9;  his  Social  Contract  only 
establishes  unity  of  power,  371  ,  his 
Social  Contract  the  text-book  of  lead- 
ing revolutionists  in  France,  372. 

Royal  republic,  England  called  thus, 
354. 

Ruatan  warrant,  177. 

Ruggles,  Samuel  B.,  speech  on  right  and 
duty  of  American  Union  to  improve 
the  navigable  waters,  1852,  and  me- 
morial of  the  canal  board  and  canal 
commissioners,  etc.,  1858,  268,  note. 

Russell,  Lord  John,  on  definitions  of  lib- 
erty, 36.  His  Histoiy  of  the  English 
Government  and  Constitution,  ibid. 

Russia,  insecurity  of  her  rulers,  364. 

Sanderson,  English  casuist,  400,  note. 
Sardanapalus,  inscription  on  his  tomb, 

339- 
Scheldt,  navigation  of  the,  267. 
Schmidt,  I.  J.,  Translation  of   History 

of    the    East    Mongols    by    Ssanang 

Ssetsen  Changsaidshi,  378. 
Scott,  General,  his  conduct  when    the 

government  of  Mexico  was  offered  to 

him,  325  ;    his   own  statement,   325, 

326,  note 
Secret  political  societies,  135. 


Sejunction  of  the  Netherlands,  337. 

Self-accusation,  principle  of,  in  China, 
76. 

Self-development  of  law,  215  and  sequ. 

Self-government,  247  and  sequ.  His- 
tory of  the  term,  247,  248,  note ;  is 
organic,  249. 

Self-government,  saved  by  England, 
21;  the  word  belongs  exclusively  to 
the  Anglican  race,  ibid. 

Self-government,  the  fittest  govern- 
ment for  man  in  his  nobler  phase, 
252;  frequently  not  brilliant,  yet 
more  efficacious,  ibid.;  prevents  gov- 
ernment from  becoming  its  own  end, 
253 ;  has  an  element  of  federalism, 
289.  See  also  De  Tocqiieville.  Does 
not  consist  in  denying  power  to 
government,  298.  Institutional  self- 
government,  319.  Popular  absolutism 
opposite  to  self-government,  388. 

Self-incrimination,  73. 

Semper  ubique,  403,  note,  and  sequ. 

Senatus-consultum,  a  term  smuggled  in 
by  Napoleon  I.,  317, note;  the  whole 
senatus-consultum  restoring  the  em- 
pire, 602. 

Separatism,  170,  note. 

Septennial  bill,  introduced  in  France 
by  Villele,  181  ;   in  England,  ibid. 

Sewell,  Rev.  William,  Christian  Poli- 
tics, 309,  note. 

Sheriff,  killing  him  by  resistance,  if  his 
warrant  is  not  legal,  constitutes  man- 
slaughter only,  no. 

Silby  Estate  affair,  95,  note. 

Silence  made  punishable,  93. 

Single-Speech  Hamilton.  See  Hamil- 
ton,  IV.   Gerard. 

Slaves,  subjects,  and  freemen,  26. 

Smith,  T.  Toulmin,  Local  Self-Govern- 
ment,  321,  note. 

Socialism,  102,  note. 

Socrates,  called  by  Lord  Mansfield  the 
greatest  of  lawyers,  242. 

Soldan's  History  of  the  Witch-Trials, 
82,  note. 

Soldiers.  See  Army,  Quartering  of 
Soldiers,  113  and  seqa. 

Sovereignty,  what  it  consists  in,  152; 
confounded  with  absolute  majority, 
286  ;  of  the  individual,  ibid.  • 

Sparta,  favorable  view  of,  by  ancient 
philosopliers,  43. 

Spartans  and  Helots,  27. 

Speaker  of  the  English  Commons,  185  ; 
under  the  French  charter,  186;  in 
America,  ibid. 


IXDEX. 


621 


Sprenger,  Malleus  Maleficarum,  403. 
Ssanant;  Ssetsen  Changsaidshi,  History 

of  the  East  Mongols,  translated  by 

Schmidt,  37S. 
Stability   of   institutional   government, 

333' 

Standing  armies.     See  Art?iy. 

State,  an  extensive  territory  with  fixed 
population  and  independent  govern- 
ment, a  modern  idea,  47. 

Statistics  of  elections,  418  and  sequ. 

St  -Just,  liljerty  of  a  negative  character, 

359- 

St. -Martin,  French  work  on  parlia- 
mentary procedure,  etc.,  191,  note. 

Story,  Judge,  on  importance  of  par- 
liamentary procedure,  193;  on  codi- 
fication, 207. 

Subjects,  slaves,  and  freemen,  26. 

Substitute  voting,  177,  note. 

Substitutes  for  representatives,  not  used 
in  the  Anglican  system,  178. 

Supplies  l)y  legislature,  always  shunned 
by  absolute  rulers,  273.  See  Taxa- 
tion. 

Supremacy  of  the  law,  106  and  sequ  ; 
requires  that  officers  of  government 
remain  personally  answerable,  108; 
only  English  and  Americans  have 
this  principle,  ibid. ;  whether  the 
principle  has  been  carried  too  far, 
no. 

Suspects,  law  of,  73,  note. 

Suspensive  veto,  202,  note. 

Sweden,  legislature  of,  290,  note. 

Swiss,  dependence  of,  57. 

T.-vxATiON,  right  of  self-taxation,  103 ; 
Declaration  of  Independence  con- 
cerning taxes  without  consent,  144; 
merely  denying  taxes  is  not  liberty, 
ibid. ;  appropriations  should  be  short, 
145 ;  French  imperial  constitution 
demands  appropriations  en  bloc,  ibid. ; 
history  of  English  supplies,  ibid. ; 
civil  list,  146. 

Teutonic  sjiirit,  its  relation  to  Anglican 
liberty,  53. 

Teutonism  and  Latinism,  293. 

Theo-democracy  of  the  Mormons,  287. 

Titmann,  F.  \V.,  Descriptions  of  the 
Grecian  Polities,  31, 

Tocqueville,  de,  Ancien  Regime,  196, 
note  ;  opinion  of,  on  centralization  of 
France  and  its  insecurity,  254;  on 
the  general  character  of  the  French, 
from  his  Ancien  Regime,  254,  note. 

Torture,  existed  veiy  late,  457,  note. 


Townsend,  History  of  the  House  ot 
Commons,  187. 

Transportation,  decreed  by  the  dictator 
in  France,  73,  note ;  expatriation, 
etc.,  almost  always  resorted  to  by 
absolutism,  275. 

Treason.   See  High  Treason,  Trial  for. 

Trench,  Lessons  in  Proverl)s,  406. 

Trial  by  jury,  232  and  sequ;  Declara- 
tion of  Independence  regarding  its 
denial,  233 ;  some  Americans  desire 
its  abolition,  233,  note  ;  its  advan- 
tages, 234 ;  Lord-Chancellor  Cran- 
worth's  opinion  on  it,  236.  See 
Unanimity. 

Trial,  Penal.     See  Penal  Trial. 

Tribune,  Roman,  his  veto,  201. 

Troplong,  President  of  the  French 
senate,  on  democracy  ascending  the 
throne  in  the  Roman  Ctesars,  377  ; 
remarkable  state  paper  by,  588  and 
sequ. 

Turgot,  on  Anglican  polity,  195  ; 
against  two  legislative  houses,  ibid. 

Turks,  do  not  assimilate  with  conquered 
people,  333. 

Turncoats,  Dictionary  of,  409,  note. 

Tyler,  Samuel,  author  of  First  Report 
of  Commissioners,  etc.,  196,  note; 
writer  on  philosophy,  ibid. 

Unanimity  of  juries,  Hallam's  opin- 
ion, 237.  Locke  against  it,  238. 
Duke's  laws  demanded  it  in  capital 
cases  only,  238. 

Unanimity  principle  in  the  Netherlands, 
337.  note. 

Unarticulated  masses,  387. 

Unicameral  system,  194,  288,  290. 

Uniformity  extending  among  civilized 
nations,  295  and  note. 

Uninstitutional  governments  insecure, 
363  and  sequ. 

Union,  the  loyalty  of  an  American 
centres  in  it,  354,  note. 

United  States,  important  situation  of, 
regarding  the  progress  of  civiliza- 
tion, 21  ;  Constitution  of  the,  514 
and  sequ. 

Unity  of  power,  the  Gallican  type,  151. 
Frencli  pamphlet,  ascribed  to  Napo- 
leon III.,  in  favor  of  it,  ibid.  Is 
absolutism,  152.  Is  brilliant,  153. 
Montesquieu  on  it,  ibid.  In  democ- 
racy always  leads  to  monarchy;  de- 
sired in  France  ;  De  Tocqueville  on 
it,  196,  note. 

Universal  suffrage,  Rousseau  regarding 


522 


INDEX. 


it,  197.  In  America,  262.  Uni versa] 
suffrage  alone  not  the  basis  of  liberty, 
288;  called  by  Girardin  the  republic, 
355  ;  may  support  absolutism,  382. 

Upper  house,  organization  of  it,  198 
and  sequ.  Lord  Brougham's  opin- 
ion, 198. 

Usage,  in  institutional  governments, 
348. 

Utopias  always  founded  on  commu- 
nism, 44,  note. 

Vallette,  French  work  on  parlia- 
mentary procedure,  etc.,  191,  note. 

Vaughn,  Robert,  D.D.,  The  Age  of 
Great  Cities,  392,  note. 

Vertot,  History  of  the  Knights  of  Malta, 
178,  note. 

Veto,  200  ;  of  the  Roman  tribune,  201  ; 
of  king  and  president,  201,  202. 

Vice-president  of  the  United  States  pre- 
sides over  the  senate,  187. 

Villele,  Count,  introduced  septennial 
bill,  181. 

Vincke,  von,  reports  a  lawsuit  about  a 
square  foot  of  land,  260,  note. 

Voget,  defensor  of  the  poisoner  Gott- 
fried, his  opinion  on  the  independ- 
ence of  advocates,  240,  note. 

Voting,  various  proposed  modes  of,  177, 
note. 

Vox  populi  vox  Dei,  398  and  sequ. 
Crusades,  399.  Unanimity  does  not 
prove  it,  401.  French  manufacturers 
used  it  against  calico-manufacturing, 
402.  Fashion  is  unanimous,  but  not 
V.  P.  V.  D.,  402  and  sequ  ;  witch- 
trials  unanimous,  403.  Unanimous 
commercial  speculations,  404.  The 
worst  passions  unanimous,  404.  What 
is  the  voice  of  the  people,  405.  Pro- 
verbs, voice  of  the  people,  but  not 
of  God,  406.  Pius  IX.  uses  it,  ibid. 
Used  chiefly  in  France  after  the  coup 
d'etat,  407.  Real  lover  of  liberty 
discards  it,  ibid.  Has  no  political 
worth,  408.  It  enfeebles  and  unfits 
for  opposition,  ibid, 

Wai.ewski,   Count,   his   treatment    of 

Ilritish  merchants,  58,  note. 
Walpole,  cabinet  member  in  1852,  on 


the  necessity  of  courts  of  law  deciding 
on  doubts  arising  from  royal  procla- 
mations, 217. 

War,  power  of  making  it,  in  England, 
147.  In  the  United  States,  the  power 
belongs  to  congress,  ibid.  Where 
the  executive  has  the  real  power  of 
making  it,  civil  liberty  does  not  exist, 
ibid. 

Wardlaw,  Judge,  opinion  on  dies  non- 
juridicus,  216. 

Warrant,  importance  of,  62.  Constitu- 
tion of  the  United  States  on  warrants, 

63. 

Warrants,  general,  62  and  sequ. 

Wealth  made  compatible  with  liberty, 
361. 

Webster,  on  simplicity  of  despotism, 
154.  Necessity  of  complicated  char- 
acter of  liberty,  ibid. 

Welling,  James  C,  interesting  histori- 
cal account  of  the  introduction  of 
publicity  in  the  senate  of  the  United 
States,  135,  note,  and  sequ. 

Wellington,  does  not  desire  sovereignty, 
325.  Obedience  of  officers  to  him, 
328,  note. 

Western,  designating  Europeans  and 
their  descendants,  22,  note. 

Wharton,  Francis,  State  Trials  of  the 
United  States,  85. 

Whately,  Archbishop,  his  view  of  lib- 
erty of  conscience,  and  assistance  to 
be  given  to  those  who  suffer  for  it, 
98,  note. 

William  HI.,  declaration  of,  regarding 
liberty  of  conscience,  99. 

William  of  Malmesbury,  concerning 
"vox  populi  vox  Dei,"  400,  note. 

Winthrop,  Robert,  131,  note.  His 
testimony  in  favor  of  publicity  of 
speaking,  133,  note. 

Witch-trials,  importance  of  their  study, 
82,  note ;  unanimous  all  over  Europe, 

403- 
Witchcraft  a  crimen  exceptum,  82. 
Workman,  ouvrier,  claims  an  aristocracy 

for  himself,  382. 
Written    constitution.      See    Enacted 

Constitutions. 

YoRKE,  Col.  Philip.     See  Alitffling. 


THE   END. 


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